REDFORD & REDFORD - [2017] FamCA 114

FAMILY COURT OF AUSTRALIA

REDFORD & REDFORD

[2017] FamCA 114

FAMILY LAW – INTERLOCUTORY – Unacceptable risk of harm –Where the father seeks reversal of the children’s residence due to the risk of their physical and sexual harm while in the mother’s care – Where there is a lengthy history of complaints made by the father, all of which were found to be unreliable – Where there is no evidentiary basis to find the mother poses an unacceptable risk of harm to the children – Where the father’s conduct calls into question his judgment and insight – Ordered the children live with the mother

FAMILY LAW – INTERLOCUTORY – Parental responsibility – Where the parties accepted a previous order for equal shared parental responsibility – Where the parties cannot consult courteously over matters of importance to the children – Ordered the mother have sole parental responsibility

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC

Banks & Banks (2015) FamCA 36
Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Redford

RESPONDENT:

Mr Redford

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

FILE NUMBER:

NCC

2484

2013

DATE DELIVERED:

17 February 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

17 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:	Mr Wallace, Ramsland Laidler Solicitor
COUNSEL FOR THE RESPONDENT:	Mr Duane

SOLICITOR FOR THE RESPONDENT:

NLS Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wooi as agent for Sharon
Moore Solicitor

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

Orders 1.2 to 1.24 inclusive made on 16 June 2016 are suspended.
The mother shall have sole parental responsibility for the following children (“the children”):
a.B, born … ~~2016~~ 2006;
b.C, born … 2010; and

c.D, born … 2011.

The children shall live with the mother.

Each party shall take all reasonable steps to ensure that the children spend supervised time with the father for two hours each alternate weekend commencing not before Saturday, 25 February 2017.

For the purpose of implementation of the preceding order:

a.The supervisor of the time spent by the children with the father shall be staff at Relationships Australia, F Contact Centre, Newcastle, or such other person or entity agreed upon between the parties and Independent Children’s Lawyer (“the supervisor”);
b.Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
c.The time spent by the children with the father each alternate weekend shall commence at the time designated by the supervisor;
d.The venue at which the time is to be spent by the children with the father each alternate weekend shall be designated by the supervisor;

e.The parties shall pay in equal shares any costs due to the supervisor;
f.The mother shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time…

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

Case: [2017] FamCA 114
Decision Date: 17 February 2017

CaseChat Overview and Summary

In the matter of REDFORD & REDFORD, Austin J of the Family Court of Australia considered an application by the father seeking to reverse the children's residence from the mother. The father alleged an unacceptable risk of physical and sexual harm to the children while in the mother's care.

The court was required to determine whether the mother posed an unacceptable risk of harm to the children, and consequently, whether the existing orders for equal shared parental responsibility and the children living with the mother should be altered. The court also considered the parties' ability to consult on matters concerning the children.

Austin J found no evidentiary basis to support the father's allegations of risk posed by the mother, noting a lengthy history of complaints made by the father that had previously been found unreliable. The judge concluded that the father's conduct called into question his judgment and insight. Consequently, the court ordered that the children live with the mother and that the mother have sole parental responsibility, as the parties were unable to consult courteously on important matters. The father was granted supervised time with the children, and orders were made restraining him from approaching the mother's residence or the children's schools, and from denigrating the other parent.

Orders

Orders of the court

PENDING FURTHER ORDER, IT IS ORDERED THAT

Orders 1.2 to 1.24 inclusive made on 16 June 2016 are suspended.

The mother shall have sole parental responsibility for the following children (“the children”):

a. B, born … 2016 2006;

b. C, born … 2010; and

c. D, born … 2011.

The children shall live with the mother.

Each party shall take all reasonable steps to ensure that the children spend supervised time with the father for two hours each alternate weekend commencing not before Saturday, 25 February 2017.

For the purpose of implementation of the preceding order:

a. The supervisor of the time spent by the children with the father shall be staff at Relationships Australia, F Contact Centre, Newcastle, or such other person or entity agreed upon between the parties and Independent Children’s Lawyer (“the supervisor”);

b. Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

c. The time spent by the children with the father each alternate weekend shall commence at the time designated by the supervisor;

d. The venue at which the time is to be spent by the children with the father each alternate weekend shall be designated by the supervisor;

e. The parties shall pay in equal shares any costs due to the supervisor;

f. The mother shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the father;

g. The mother and father shall comply with all reasonable requests and directions of the supervisor; and

h. Leave is granted to the parties and the Independent Children’s Lawyer to provide a copy of these orders to the supervisor.

Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

a. The mother’s residence; and

b. Any school or pre-school attended by the children.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

The mother shall authorise and request the principal of any school or pre-school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10.

Otherwise:

a. The application for interim relief set out within the Initiating Application filed on 18 January 2017 is dismissed;

b. The application for interim relief set out within the Amended Response filed on 3 February 2017 is dismissed; and

c. Any and all other outstanding applications for interim relief are dismissed.

Order amended pursuant to Rule 17.02 of the Family Law Rules 2004

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

Background

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Evidence

Evidence Before The Court

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Decision

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