Pelham and Pelham (No 2) - [2019] FamCA 694

FAMILY COURT OF AUSTRALIA

PELHAM & PELHAM (NO. 2)

[2019] FamCA 694

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of children – Where a Recovery Order was issued for the children the subject of proceedings before the conclusion of the trial in circumstances where it was in the children’s best interests – Where the mother maintains the allegations of physical, sexual and emotional abuse perpetrated by the father towards her and the children and submits the children should return to live with her – Where no corroborative evidence was adduced to support these allegations and a finding is made that they did not occur, save for a single incident of violence admitted to by the father – Where the father submitted the children should be able to spend time with the mother and that he should be required to liaise with her in relation to decisions concerning the children – Where the Independent Children’s Lawyer submitted the mother should spend no time with the children and the father is to retain sole parental responsibility for them – Where Orders made include that the children are to live with the father, that he is to have sole parental responsibility for the children and a six month moratorium is placed on any time the father my allow the children to spend with the mother.

Family Law Act 1975 (Cth)

Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69; [1988] HCA 68
N & S & the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

APPLICANT:

Mr Pelham

RESPONDENT:

Ms Pelham

INDEPENDENT CHILDREN’S LAWYER:

Sue Duncan

FILE NUMBER:

BRC

3331

2018

DATE DELIVERED:

19 July 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

15, 16, 17, 18 & 19 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Parry Coates Family Law

COUNSEL FOR THE RESPONDENT:

Ms Lyons

SOLICITOR FOR THE RESPONDENT:

Stevenson McNamara Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sue Duncan
Legal Aid Queensland

Orders

That all previous Orders made in these proceedings be discharged.
That the children, X born in 2007, Y born in 2009 and Z born in 2013, (“the children”) shall live with the father.
That the father shall have sole parental responsibility for all decisions to be made in relation to the long-term care, welfare and development of the children.
That the children shall not spend any time with the mother for at least six (6) months from the date of these Orders and, thereafter, only with the father’s written consent or in accordance with another Order of this Court.
That the children shall not communicate with the mother by telephone, text message or email for at least three (3) months from the date of these Orders and, thereafter, only with the father’s written…

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 Pelham and Pelham (No 2)

Details

AGLC: Pelham and Pelham (No 2) [2019] FamCA 694
Case: [2019] FamCA 694
Decision Date: 19 July 2019

CaseChat Overview and Summary

In *Pelham and Pelham (No 2)*, Forrest J of the Family Court of Australia made orders concerning the living arrangements and parental responsibility for three children, X, Y, and Z. The proceedings involved a dispute between the parents regarding the children's welfare and development.

The court was required to determine the primary residence of the children, the allocation of parental responsibility for long-term decisions, and the extent of contact and communication permitted between the children and their mother. Additionally, the court considered the disclosure of court documents and reports to therapeutic professionals and the mother's proximity to the children and their educational institutions.

Forrest J ordered that the children live with the father and that he have sole parental responsibility for all long-term decisions concerning their care, welfare, and development. The mother was prohibited from spending any time with the children for at least six months, and thereafter, only with the father's written consent or a further court order. Similarly, communication between the mother and children via telephone, text, or email was restricted for at least three months, with subsequent communication subject to the father's consent or court order. The court also granted leave for both parents to provide specified reports and judgments to counsellors or therapists, and imposed restrictions on the mother approaching the children or their schools, while permitting the father to provide the orders to school staff. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous Orders made in these proceedings be discharged.

That the children, X born in 2007, Y born in 2009 and Z born in 2013, (“the children”) shall live with the father.

That the father shall have sole parental responsibility for all decisions to be made in relation to the long-term care, welfare and development of the children.

That the children shall not spend any time with the mother for at least six (6) months from the date of these Orders and, thereafter, only with the father’s written consent or in accordance with another Order of this Court.

That the children shall not communicate with the mother by telephone, text message or email for at least three (3) months from the date of these Orders and, thereafter, only with the father’s written consent or in accordance with another Order of this Court.

That pursuant to s 121 of the Family Law Act 1975 (Cth) leave be granted to the father to provide copies of the reports of Ms R and Dr H, the ex tempore reasons for judgment given on 18 July 2019, and the ex tempore reasons for judgment of today, to any counsellor or psychological therapist he engages with therapeutically or to whom he takes the children for counselling or psychological therapy.

That pursuant to s 121 of the Family Law Act 1975 (Cth) leave be granted to the mother to provide copies of the reports of Ms R and Dr H, the ex tempore reasons for judgment given on 18 July 2019, and the ex tempore reasons for judgment of today, to any counsellor or psychological therapist she engages with therapeutically in the future.

That the mother be restrained from approaching the children, going anywhere near any home in which the children are living, going anywhere near any school the children are attending or communicating with the teaching or administration staff of any school the children are attending, without the father’s written consent or in accordance with another Order of this Court.

That the father be permitted to provide a copy of a sealed copy of these Orders to the Principal and administration of any school the children are attending.

10.

That the Independent Children’s Lawyer be discharged.

11.

That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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