P & D - [2001] FamCA 1197

[2001] FamCA 1197

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA

AT BRISBANE No. BR6845 OF 1996

IN THE MATTER OF: P.

Father

AND: D.

Mother

BEFORE THE HONOURABLE JUSTICE LINDENMAYER

DATESOF HEARING: 18-22 JANUARY, 1999 13-16 SEPTEMBER, 1999, 17 MARCH, 2000, 28MARCH, 2000 & 22-25 MAY, 2000

DATE OF JUDGMENT: 29 AUGUST, 2001

REASONS FOR JUDGMENT

Appearances: Mr Smith of Counsel (instructed by Kelly & Agerholm, Solicitors, Arana Legal Centre) for the Father

Mr McGregor of Counsel (instructed by Bennett Carroll & Gibbons until 17 March, 2000 and then by Frank Carroll, Solicitor) until 16 September, 1999, and thereafter Mr Long of Counsel (instructed by Frank Carroll Solicitor) for the Mother
Mr Waterman of Counsel (instructed by Legal Aid Office) for the Child Representative

CHILDREN – Parenting Orders – Residence – ss60B; 68F(2); 65E Family Law Act – B and B: Family Law Reform Act 1995 (1997) FLC 92-755; Re David (1997) FLC 92-776

CHILDREN – Parenting Orders – child, aged 9, resided with the mother for his whole life – mother made unfounded allegations against father of ill-treatment and sexual abuse of child – mother’s continuous efforts to thwart contact and alienate child from father – change of residence – status quo – Raby and Raby (1976) FLC 90-104; Jones v Jones (1960) 77 W.N. (NSW) 682; P v P (1964) 5 F.L.R. 452

CHILDREN – Contact – Dr Gardner’s “ Parental Alienation Syndrome”

EVIDENCE – Failure to object to hearsay – ss59, 190(1)and 190(3) Evidence Act

EVIDENCE – Credibility Rule s102 Evidence Act – s108(3)(b) Evidence Act – Court grants leave to adduce evidence of a prior inconsistent statement nunc pro tunc

INTRODUCTION

This is an application for final orders, under Part VII of the Family Law Act 1975 ("the Act") with respect to, firstly, the residence of and, secondly, in the event that that application is unsuccessful, defined contact with “the child”. The application concerning contact was originally filed by “the father”) on 2 July, 1996 and then, in an application filed 17 March, 2000, he changed his position and sought residence of the said child. The orders currently sought by the father make provision for the child to reside with him, in conjunction with complementing contact arrangements in favour of the current resident parent, who is “the mother”.

On 28 March, 2000, pursuant to my orders, the hearing of the application for residence was joined with the father’s initial and longstanding application for defined contact, which has been amended on a number of occasions throughout the lengthy and unfortunate history of this matter. In a Response filed on 24 March, 2000, the mother sought an order dismissing the father’s application for residence, with costs. Over the course of the proceedings, the mother has consistently contested the father’s applications for physical contact with the child.

The father has not had unsupervised contact with the child since 1996, and such attempts as have been made to re-establish the relationship through supervised contact have been singularly…

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.

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Details

AGLC: P & D [2001] FamCA 1197
Case: [2001] FamCA 1197
Decision Date: 29 AUGUST, 2001

CaseChat Overview and Summary

The case of P & D concerned parenting orders for a nine-year-old child who had resided with his mother since birth. The dispute arose from the mother's allegations of ill-treatment and sexual abuse against the father, which the court found to be unfounded. The mother had also persistently obstructed contact between the child and the father and engaged in efforts to alienate the child from him. The matter came before the Honourable Justice Lindenmayer.

The central legal issues before the court were whether to vary existing parenting orders, specifically concerning the residence of the child, and whether to grant leave to adduce evidence of a prior inconsistent statement. The court was required to consider the paramountcy of the child's welfare and best interests, the principle of maintaining the status quo where appropriate, and the impact of parental alienation on the child's relationship with both parents. The admissibility of certain evidence, including hearsay and prior inconsistent statements, was also a key consideration.

Justice Lindenmayer's reasoning focused on the detrimental effect of the mother's actions on the child's relationship with his father and the unfounded nature of her allegations. The court applied principles established in cases such as *B and B* and *Re David* regarding parenting orders, and *Raby and Raby*, *Jones v Jones*, and *P v P* concerning the importance of maintaining relationships and the status quo. The court also considered the concept of parental alienation, referencing Dr. Gardner's work. Leave was granted to adduce evidence of a prior inconsistent statement *nunc pro tunc*, despite the failure to object to hearsay earlier in the proceedings, given the significance of the evidence to the child's best interests. The court ultimately ordered a change of residence for the child to live with the father.

Orders