OSCAR & AUSTEN - [2012] FamCA 220

FAMILY COURT OF AUSTRALIA

OSCAR & AUSTEN

[2012] FamCA 220

FAMILY LAW - CHILDREN - Magellan proceedings – allegations of sexual abuse – allegations of family violence - allegations that child at risk of abuse in the care of the father – allegation that if father were to spend time with the child it would effect the mother’s capacity to parent the child - mother to have sole parental responsibility - order that father spend no time with the child – father to communicate with the child by cards and letters

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 61C, 61DA, 64B(2)

Hartford and Ansilda [2009] FamCA 23
McCall & Clark (2009) 93- 405
B and B (1993) FLC 92-357

APPLICANT:

Mr Oscar

RESPONDENT:

Ms Austen

INDEPENDENT CHILDREN’S LAWYER:

Rimmer Lawyers

FILE NUMBER:

BRC

4069

2009

DATE DELIVERED:

5 April 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Brisbane

JUDGMENT OF:

Benjamin J

HEARING DATE:

22, 23, 24, 25, 26, & 29 August 2011, 16, 17, 18, 19 & 20 January 2012 & 13 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Barajaraj (Counsel on direct brief)

SOLICITOR FOR THE APPLICANT:

Applicant in person

COUNSEL FOR THE RESPONDENT:

Respondent in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rimmer Lawyers

Orders

All previous parenting orders in relation to Z Austen born January 2007 (“the child”) are vacated.
Ms Austen (“the mother”) have sole parental responsibility in respect of the child, including the exclusive parental reponsibility to determine where, within the Commonwealth of Austrtalia, the child resides.
The child live with the mother.
Mr Oscar (“the father”) and his family may communicate with the child as follows:-
(a)By cards and letters addressed to the child care of the mother;
(b)The mother shall be responsible for ensuring that, having regard to the age and maturity of the child, no inappropriate written material from the father is to be given to her;
(c)The cards and letters may be sent at Christmas, Easter, Father’s Day, the father’s birthday and the child’s birthday;
(d)The mother and father shall, within twenty one (21) days of the date of this order, provide each other with a postal address where each may communicate with the other and shall notify the other parent within fourteen (14) days of any change of postal address and residential address.
Other than the communication referred to above, or otherwise agreed to in writing between the parties, the father shall not spend time with the child or otherwise communicate with the child.
Except as specifically provided in these orders, or as otherwise agreed in writing between the parties, the father be and is restrained from approaching or meeting the child, communicating or spending time with the child or going to the home or school of the child or to the mother’s place of employment.
Each year until the child attains the age of 18 years the father is given permission to contact the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OSCAR & AUSTEN

Details

AGLC: OSCAR & AUSTEN [2012] FamCA 220
Case: [2012] FamCA 220
Decision Date: 5 April 2012

CaseChat Overview and Summary

In the matter of OSCAR & AUSTEN, Benjamin J of the Family Court of Australia made orders concerning the parenting of Z Austen, born in January 2007. The dispute involved the mother, Ms Austen, and the father, Mr Oscar, regarding the child's upbringing and contact arrangements.

The court was required to determine the appropriate parenting orders, including who would have parental responsibility for the child, where the child would live, and the nature and extent of contact the father and his family could have with the child. The court also considered measures to prevent the child's international removal and the communication of information to extended family members.

Benjamin J vacated all previous parenting orders and made new orders granting the mother sole parental responsibility, including the exclusive right to determine the child's residence within Australia. The child was ordered to live with the mother. Contact for the father and his family was significantly restricted to written communication via cards and letters at specific times, with the mother responsible for ensuring the appropriateness of the content. The father was restrained from approaching or communicating with the child, except as specified. The court also ordered the father to provide contact details for his parents and sisters, who would be informed of the orders and invited to send letters to the child. To prevent international abduction, the child's name was placed on the airport watch list until January 2018.

Orders

Orders of the court

All previous parenting orders in relation to Z Austen born January 2007 (“the child”) are vacated.

Ms Austen (“the mother”) have sole parental responsibility in respect of the child, including the exclusive parental reponsibility to determine where, within the Commonwealth of Austrtalia, the child resides.

The child live with the mother.

Mr Oscar (“the father”) and his family may communicate with the child as follows:-

(a) By cards and letters addressed to the child care of the mother;

(b) The mother shall be responsible for ensuring that, having regard to the age and maturity of the child, no inappropriate written material from the father is to be given to her;

(c) The cards and letters may be sent at Christmas, Easter, Father’s Day, the father’s birthday and the child’s birthday;

(d) The mother and father shall, within twenty one (21) days of the date of this order, provide each other with a postal address where each may communicate with the other and shall notify the other parent within fourteen (14) days of any change of postal address and residential address.

Other than the communication referred to above, or otherwise agreed to in writing between the parties, the father shall not spend time with the child or otherwise communicate with the child.

Except as specifically provided in these orders, or as otherwise agreed in writing between the parties, the father be and is restrained from approaching or meeting the child, communicating or spending time with the child or going to the home or school of the child or to the mother’s place of employment.

Each year until the child attains the age of 18 years the father is given permission to contact the child’s school (but not to attend the child’s schools) to obtain a school photograph of the child and a copy of the child’s school reports; such photograph and reports to be forwarded to the father at his expense. After the child commences High School, such photographs and school reports may only be provided if the child consents.

That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

The Court requests that the Australian Federal Police place the name of the child (Z Austen (“the child”) born January 2007) on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the child from Australia in breach of these orders. This order will expire on 1 January 2018 and the child’s name will be removed from the watch list as and from that date.

10.

Within fourteen (14) days from the date of this order the father shall provide in writing to Independent Children’s Lawyer the last known postal and/or residential addresses of each of his father, Mr Oscar Senior, his mother, Ms Oscar Senior, and his sisters Ms S Oscar and Ms M Oscar.

11.

The Independent Children’s Lawyer shall forward a letter, by ordinary pre paid airmail, to each of Mr Oscar Senior, Ms Oscar Senior, Ms S Oscar and Ms M Oscar. Such letter to inform each of these members of the child’s family of the postal address of the mother and the invitation to each of them to send letters and cards to the child and providing each of them with a copy of this order. IT IS REQUESTED that Legal Aid Queensland fund a translation of the letter and orders to be sent to these members of the child’s paternal family.

12.

This proceeding be removed from the list of cases requiring determination.

13.

All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED

14.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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