Pullman and Pullman (No 2) - [2012] FamCA 980

FAMILY COURT OF AUSTRALIA

PULLMAN & PULLMAN (NO. 2)

[2012] FamCA 980

FAMILY LAW – CHILDREN – Family violence and abuse – where finding the father had not committed family violence – where finding no sexual assault of the mother by the father – where there was no unacceptable risk of harm to the children in the care of their father

FAMILY LAW – CHILDREN – With whom the children live – where the children live with the father – where the children have meaningful relationships with both parents – where the mother was unable to encourage positive relationships between the children and father – where the father could promote positive relationships between the children and the mother – where the children had already benefited from an interim change of residence to live with the father – where there is no risk of harm to the children in the father’s care – where orders are inconsistent with an existing family violence order

FAMILY LAW – CHILDREN – With whom the children spend time – where the children spend supervised time with the mother once each month – where the mother posed a risk of psychological harm to the children whilst they were in her care – where the mother was unable to provide for the children’s emotional needs – where the mother was diagnosed with borderline personality disorder

FAMILY LAW – CHILDREN – Parental responsibility – where the father has sole parental responsibility for the children – where it is not in the children’s best interests to apply the presumption of equal shared parental responsibility – where the parties are unable to effectively communicate in relation to the children – where conditions were consensually imposed on the father’s exercise of parental responsibility

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother sought that orders be made on only an interim basis to enable her submission to psychotherapy – where there was no evidence the psychotherapy would achieve improvement in the mother’s psychological condition, either in the short, mid, or long term – where the mother expressed an intention to make a fresh parenting application if there was a material change in the circumstances of her psychological condition – where orders made on a final basis

Family Law Act (Cth) ss 4,60B, 60CA, 60CC, 60CG, 61B, 62B, 61DA, 64B, 65D, 65DA, 65AA, 65DAA, 65DAC, 65DAE, 68B, 68P
Mental Health Act (NSW)

Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
H & K [2001] FamCA 687
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Marriage of B & B (1993) FLC 92-357
Marriage of Bieganski (1993) 16 Fam LR 353
Marriage of L & T (1999) 25 Fam LR 590
Moose v Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461

Re C & J (1996) 20 Fam LR 930
Rice v Asplund (1979) FLC 90-725

W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Pullman

RESPONDENT:

Ms…

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 Pullman and Pullman (No 2)

Details

AGLC: Pullman and Pullman (No 2) [2012] FamCA 980
Case: [2012] FamCA 980
Decision Date

CaseChat Overview and Summary

In *Pullman & Pullman (No 2)*, the Family Court of Australia considered applications concerning the parenting of two children, M and S. The father, Mr Pullman, sought sole parental responsibility and orders for the children to live with him, while the mother, Ms Pullman, had sought interim orders to allow her to undergo psychotherapy. The court was required to determine the best interests of the children, including issues of parental responsibility, residence, and time spent with each parent, in circumstances where allegations of family violence and sexual assault had been made and a diagnosis of borderline personality disorder had been made in relation to the mother.

The court was tasked with determining with whom the children should live and spend time, and whether the presumption of equal shared parental responsibility should apply. Key considerations included the risk of harm to the children in the care of either parent, the ability of each parent to encourage positive relationships between the children and the other parent, and the mother's capacity to meet the children's emotional needs. The court also had to assess the mother's expressed intention to undergo psychotherapy and whether any orders should be made on an interim or final basis.

Justice Austin found that the father had not committed family violence and that there was no unacceptable risk of harm to the children in his care. The court determined that it was not in the children's best interests to apply the presumption of equal shared parental responsibility due to the parties' inability to communicate effectively. The court noted that the children had already benefited from an interim change of residence to live with the father and that the mother posed a risk of psychological harm to the children. Consequently, the court made final orders granting the father sole parental responsibility, with the children to live with him. The mother was granted supervised time with the children once a month, with specific restrictions on her contact with them and their residences. The court also noted the mother's intention to seek psychotherapy and granted her leave to provide relevant court documents to her treating professionals. The court also addressed the potential inconsistency between its orders and an existing interim apprehended violence order.

Orders