Pelzer and Pelzer - [2015] FCWAM 105

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PELZER and PELZER [2015] FCWAM 105

CORAM: KAESER M

HEARD: 22 DECEMBER 2015

DELIVERED : 8 JUNE 2015

FILE NO/S: PTW 1665 of 2011

BETWEEN: MR PELZER
Applicant
AND
MS PELZER
Respondent

Catchwords:

Child Related Proceedings; Interim decision; history of allegations of sexual assault by the father against the child, her sister, a step sister and another family member; allegations also made against the paternal grandfather; some allegations substantiated by the Department for Child Protection and Family Support; no charges ever laid against father; finding of unacceptable risk of sexual harm to child in Father’s care; order for no contact made.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Hughes
Respondent: Mr Keating
Independent Children's Lawyer : Ms Lee

Solicitors:

Applicant: Anthony Hughes & Co
Respondent: Wayne Dawkins Lawyers
Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

Banks & Banks [2015] FamCA 66
Goode and Goode (2006) FLC 93-286

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1[Mr Pelzer] and [Ms Pelzer] began a relationship in 1999, were married in 2000 and separated on 23 March 2011. Previous proceedings took place in 2011 and 2012 in this Court. The parties have three children, [Child A] born [in] 2000, [Child B born [in] 2002 (who was 12 at the date of hearing) and [Child C] born [in] 2007.
2The children have had reasonably unsettled arrangements since separation. Initially the children were living with the father at the former matrimonial home. Some two months later the children returned to live with the mother and the father spent time with them for five days in every fortnight. In September 2011 all three children returned to live with the father whilst the mother maintained contact with Child C. In June 2012 orders were pronounced providing for Child A and Child B to live with the father and that Child C would live between each home on a week-about basis.
3In January 2013 the father moved to [New South Wales]. The children Child A and Child B moved with him. Child C remained living in Western Australia with the mother. In October 2013 Child A returned from New South Wales to resume living with the mother in Perth. Child B remained in the father’s care. On 6 July 2014 the father returned to Western Australia and Child B remained living with him. On 30 August 2014, after a period of time with the mother, the mother refused to return Child B to the father’s care. Since that time, the father has not spent any time with any of the three children due to the concerns raised by the mother. The father has been maintaining some telephone communication.
4The father lives in [Suburb A] with his parents and the mother lives in [Suburb P] with…

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 Pelzer and Pelzer

Details

AGLC: Pelzer and Pelzer [2015] FCWAM 105
Case: [2015] FCWAM 105
Decision Date: 8 JUNE 2015

CaseChat Overview and Summary

The case of Pelzer and Pelzer was heard in the Family Court of Australia, involving a dispute regarding the care and custody of a child. The mother sought a final parenting order, while the father contested this on the basis of multiple allegations of sexual abuse against him, including by the child, her sister, a step-sister, and another family member. These allegations were also extended to the paternal grandfather. Although some of these allegations were substantiated by the Department for Child Protection and Family Support, no criminal charges were ever brought against the father. The court was tasked with determining whether the allegations, coupled with the findings of unacceptable risk of sexual harm to the child in the father's care, justified an order for no contact.

The court had to consider the credibility and weight of the allegations, the findings of the Department for Child Protection and Family Support, and the implications of these findings on the child's safety and welfare. The primary legal issue was whether the unsubstantiated allegations, along with the risk findings, warranted restricting the father's contact with the child. Additionally, the court needed to balance the child's right to a relationship with both parents against the potential risk of harm.

The court found that despite the unsubstantiated allegations, the risk findings made by the Department for Child Protection and Family Support were sufficient to warrant a no-contact order. The court held that the unsubstantiated nature of the allegations did not negate the substantiated findings of unacceptable risk. The court concluded that the child's safety and welfare were paramount and that the risk of sexual harm outweighed the benefits of maintaining a relationship with the father. Consequently, the court made an order for no contact between the father and the child.

Orders