Reisner and Reisner (No. 2) - [2010] FamCA 678

FAMILY COURT OF AUSTRALIA

REISNER & REISNER (NO. 2)

[2010] FamCA 678

FAMILY LAW – CHILDREN – With whom a child spends time – Sexual abuse allegations against paternal grandfather

APPLICANT:

Ms Reisner

RESPONDENT:

Mr Reisner

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1065

2007

DATE DELIVERED:

4 August 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

STEVENSON J

HEARING DATE:

14,15,16,19,20,21 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hogan

SOLICITOR FOR THE APPLICANT:

Barry & Nilsson

COUNSEL FOR THE RESPONDENT:

Mr Reisner in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McMillan SC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Neill

Orders

That all existing parenting orders in relation to the child …, born on … October 2002 (‘the child’) be discharged.
That the child live with the mother.
That each parent have sole responsibility for making decisions as to the child’s day-to-day care, welfare and development while she is in the care of that party pursuant to these orders.
That the child spend time with the father as agreed but failing agreement as follows:
4.1during school term time each alternate weekend from the conclusion of school on Friday, or Thursday if that Friday is a public holiday, until the commencement of school on Monday, or Tuesday if that Monday is a public holiday
4.2from the conclusion of school on Wednesday until the commencement of school on Thursday in each week during school term time
4.3from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2010 and each alternate year thereafter
4.44.4.1   from 5:00pm on Christmas Day until 5:00pm on Boxing Day in 2011 and each alternate year thereafter
4.4.2   subject to orders 4.3 and 4.4, for the first half of all school holidays in 2010 and each alternate year thereafter and for the second half in 2011 and each alternate year thereafter
4.54.5.1    from 3:00pm until 7:00pm on the child’s birthday if that day is a weekday
4.5.2    from 9:00am until 1:00pm on the child’s birthday if that day is a Saturday and from 1:00pm until 5:00pm if that day is a Sunday
4.6from the conclusion of school or 3:00pm until 7:00pm on the father’s birthday
4.7from 9:00am on Fathers Day until the commencement of school on the next day, if the child is not otherwise in the father’s care pursuant to these orders
If the child is in the care of the father, she will spend time with the mother as follows:
5.1from 9:00am until 1:00pm on the child’s birthday if that day is a Saturday and from 1:00pm until 5:00pm if that day is a Sunday or from 3:00pm until 7:00pm on a weekday
5.2from the conclusion of school or 3:00pm until 7:00pm on the mother’s birthday
5.3from 9:00am on Mothers Day
6.1 6.1.1 That the parties effect changeovers at the child’s school on days when she is attending school.
6.1.2 That, on non-school days, the parent with whom the child is to spend time will collect her at the…

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 Reisner and Reisner (No. 2)

Details

AGLC: Reisner and Reisner (No. 2) [2010] FamCA 678
Case: [2010] FamCA 678
Decision Date: 4 August 2010

CaseChat Overview and Summary

This case concerned parenting orders for a child born in October 2002. The dispute involved the parents' arrangements for the child's living arrangements, time spent with each parent, and decision-making responsibilities. The matter came before Stevenson J.

The court was required to determine the specific orders regarding the child's residence, the allocation of parental responsibility for day-to-day decisions, and the detailed arrangements for the child's time with each parent, including during school terms, holidays, and special occasions. Additionally, the court needed to address provisions for information sharing between parents regarding the child's education and wellbeing, and specific supervision requirements concerning the paternal grandfather.

Stevenson J discharged all existing parenting orders and made new orders. The child was ordered to live with the mother, with each parent having sole responsibility for day-to-day decisions while the child was in their care. The court then set out detailed provisions for the child's time with the father, including alternate weekends, mid-week time, and specific arrangements for Christmas, school holidays, birthdays, and Father's Day. Provisions were also made for the child to spend time with the mother when in the father's care, including on birthdays and Mother's Day. The orders also stipulated changeover locations, parental access to information about the child's welfare and education, and importantly, required the father to personally supervise all contact between the child and the paternal grandfather, ensuring they were never alone together. Finally, the court ordered that the child attend upon a psychologist or social worker to explain the orders and advise on the reintroduction of the child to the paternal grandfather, with particulars of obligations and consequences for contravention set out in an attached Fact Sheet.

Orders

Orders of the court

That all existing parenting orders in relation to the child …, born on … October 2002 (‘the child’) be discharged.

That the child live with the mother.

That each parent have sole responsibility for making decisions as to the child’s day-to-day care, welfare and development while she is in the care of that party pursuant to these orders.

That the child spend time with the father as agreed but failing agreement as follows:

4.1 during school term time each alternate weekend from the conclusion of school on Friday, or Thursday if that Friday is a public holiday, until the commencement of school on Monday, or Tuesday if that Monday is a public holiday

4.2 from the conclusion of school on Wednesday until the commencement of school on Thursday in each week during school term time

4.3 from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2010 and each alternate year thereafter

4.4 4.4.1 from 5:00pm on Christmas Day until 5:00pm on Boxing Day in 2011 and each alternate year thereafter

4.4.2 subject to orders 4.3 and 4.4, for the first half of all school holidays in 2010 and each alternate year thereafter and for the second half in 2011 and each alternate year thereafter

4.5 4.5.1 from 3:00pm until 7:00pm on the child’s birthday if that day is a weekday

4.5.2 from 9:00am until 1:00pm on the child’s birthday if that day is a Saturday and from 1:00pm until 5:00pm if that day is a Sunday

4.6 from the conclusion of school or 3:00pm until 7:00pm on the father’s birthday

4.7 from 9:00am on Fathers Day until the commencement of school on the next day, if the child is not otherwise in the father’s care pursuant to these orders

If the child is in the care of the father, she will spend time with the mother as follows:

5.1 from 9:00am until 1:00pm on the child’s birthday if that day is a Saturday and from 1:00pm until 5:00pm if that day is a Sunday or from 3:00pm until 7:00pm on a weekday

5.2 from the conclusion of school or 3:00pm until 7:00pm on the mother’s birthday

5.3 from 9:00am on Mothers Day

6.1 6.1.1 That the parties effect changeovers at the child’s school on days when she is attending school.

6.1.2 That, on non-school days, the parent with whom the child is to spend time will collect her at the commencement of all such periods and the other parent will collect her at the conclusion thereof.

7.1 That each of the parents give all necessary consents and authorities to enable the other to:

7.1.1 obtain copies of school reports, newsletters and photographs and any information relating to the child’s educational progress and extracurricular activities

7.1.2 obtain any information in relation to the child’s physical or emotional wellbeing from a treating health professional

7.1.3 obtain any information regarding a sport or hobby in which the child participates

8.1 8.1.1 That the father personally supervise all time during which the child comes into contact with the paternal grandfather.

8.1.2 That the father ensure that the child is at no time alone with the paternal grandfather.

That the parties do all things necessary to cause the child to attend upon a psychologist or social worker, which person may be a Family Consultant other than Mr Y, for the purpose of an explanation of these orders and for provision of advice to the parents as to the reintroduction of the child to the paternal grandfather.

10.

That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11.

That all material produced on subpoena be returned.

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.