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Paul and Shaw

Paul and Shaw

Case [2017] FCCA 600 11 April 2017

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Family Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

PAUL & SHAW

[2017] FCCA 600

Catchwords:
FAMILY LAW – Parenting – where serious allegations of sexual and other abuse made against mother by her eldest son – whether there is a risk of harm to the youngest son – where the Court is concerned about the risk of psychological harm to the child – no contact with mother – transfer to Family Court of Australia.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV

Cases cited:

Goode & Goode (2006) FLC 93-286

MRR v GR [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
Vasser & Taylor-Black [2007] FamCA 547
W and W (abuse allegations: unacceptable risk) [2005] FamCA 892
WK v SR (1997) FLC 92-787

Applicant:

MS PAUL

Respondent:

MR SHAW

File Number:

WOC 1103 of 2016

Judgment of:

Judge Altobelli

Hearing date:

1 February 2017

Date of Last Submission:

1 February 2017

Delivered at:

Wollongong

Delivered on:

11 April 2017

REPRESENTATION

Solicitors for the Applicant:

Carter Ferguson Solicitors

Counsel for the Respondent:

Mr Knox

Solicitors for the Respondent:

Rita Thakur & Associates

Solicitors for the Independent Children’s Lawyer:

Maguire & McInerney Lawyers

ORDERS

Pending further order, the child namely X, born (omitted) 2008, live with the Respondent Father and the father shall be responsible for his day to day care, welfare and development.
Pending further order, the Respondent Father have sole parental responsibility for the long-term care, welfare and development of the child X, born (omitted) 2008.
Pending further order, the Respondent Father have sole parental responsibility for the day to day and long-term care, welfare and development of the child, A born (omitted) 1999.
Pending further order, there be no contact or communication between the Mother and the children.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on a date and time to be fixed.

THE COURT NOTES THAT:
A. The Court recommends that this matter be included in the Magellan program.

IT IS NOTED that publication of this judgment under the pseudonym Paul & Shaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1103 of 2016

MS PAUL

Applicant

And

MR SHAW

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children, X, born (omitted) 2008, who is now nearly 9, and his older brother A, born (omitted) 1999, who is 17 years old.
The matters raised in this case are extremely complex. There are related pending criminal proceedings that arise from the facts in dispute between the parents.
Both children present, from the material before the Court, as being vulnerable, even the older child. There are concerns apparent to the Court about the manner in which all of the adults in this case, including the paternal grandparents, have responded to the factual issues before the Court.
The Court is asked to make interim Orders only at…

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 Paul and Shaw

Details

AGLC: Paul and Shaw [2017] FCCA 600
Case: [2017] FCCA 600
Decision Date: 11 April 2017

CaseChat Overview and Summary

In the matter of *Paul and Shaw*, heard before Judge Altobelli, the dispute concerned the living arrangements and parental responsibility for two children, X and A. The orders indicate a significant shift in the children's care arrangements, with the Respondent Father being granted primary responsibility.

The court was required to determine the most appropriate living arrangements for the children, X and A, and to allocate parental responsibility for their long-term care, welfare, and development. Furthermore, the court had to consider the nature and extent of contact, if any, between the Mother and the children.

Judge Altobelli ordered that child X live with the Respondent Father, who would be responsible for X's day-to-day care, welfare, and development, as well as X's long-term parental responsibility. Similarly, the Respondent Father was granted sole parental responsibility for both the day-to-day and long-term care, welfare, and development of child A. Crucially, the court ordered no contact or communication between the Mother and either child pending further order. The proceedings were subsequently transferred to the Family Court of Australia at Sydney for further directions, and the court recommended the matter be included in the Magellan program.

Orders

Orders of the court

Pending further order, the child namely X, born (omitted) 2008, live with the Respondent Father and the father shall be responsible for his day to day care, welfare and development.

Pending further order, the Respondent Father have sole parental responsibility for the long-term care, welfare and development of the child X, born (omitted) 2008.

Pending further order, the Respondent Father have sole parental responsibility for the day to day and long-term care, welfare and development of the child, A born (omitted) 1999.

Pending further order, there be no contact or communication between the Mother and the children.

The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on a date and time to be fixed.

THE COURT NOTES THAT:

A. The Court recommends that this matter be included in the Magellan program.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Paul and Shaw [2017] FCCA 600

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 10 of 10 shown

Reynolds v Reynolds
[2011] NSWSC 83 Para 3

…A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always on…
MRR v GR
[2010] HCA 4 Para 1

…In MRR v GR [2010] HCA 4, the High Court said 8. Sub-section (1) of s 65DAA is headed “Equal time” and provides: "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must: (a) consider whether the child spending equal…
Vasser & Taylor-Black
[2007] FamCA 547 Para 6

…im proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings: At paragraph 5 of her written submissions co…
W & W (Abuse allegations: unacceptable risk)
[2005] FamCA 892 Para 3

…tatement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and c…
Fitzpatrick & Fitzpatrick
[2005] FamCA 394 Para 3

…ay J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...…
Re W (Sex abuse: standard of proof)
[2004] FamCA 768 Para 2

…In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19: 18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a C…
Briginshaw v Briginshaw
[1938] HCA 36 Para 3

…A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always on…
This is consistent with the comments of the Full Court in V & R
[2004] FAMCA 1081 Para 3

…1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge…
Leveque v Leveque
1 WLR 1461 Para 3

…A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always on…
McKee v McKee
(1957) AC 352 Para 3

…A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always on…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV 8 mentions
Evidence Act 1995 (Cth)
1 mention (from Para 3)
Family Law Reform Act 1995 (Cth)
1 mention (from Para 3)
Federal Circuit Court Act 1999 (Cth)
1 mention (from Para 7)