Rungta and Rungta - [2017] FamCA 845

FAMILY COURT OF AUSTRALIA

RUNGTA & RUNGTA

[2017] FamCA 845

FAMILY LAW – CHILDREN – Magellan – Best interests – Whether the children are at an unacceptable risk of sexual abuse in the unsupervised care of the father – Where a finding is made that the father sexually abused his child – Where it is ordered that the children continue to spend supervised time with the father.

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Trade Practices Commission v Mobil Oil Australia Limited (1984) 55 ALR 527
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

Cross on Evidence (Sixth Australian Edition), LexisNexis

APPLICANT:

Mr Rungta

RESPONDENT:

Ms Rungta

INDEPENDENT CHILDREN’S LAWYER:

Mr Grainger

FILE NUMBER:

LEC

283

2015

DATE DELIVERED:

24 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

13, 14, 15 & 16 March and 11, 12 & 13 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mason

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

O'Reilly & Sochacki

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Frizelle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Grainger
Legal Aid Queensland

Orders

That all previous parenting orders be discharged.
That the children, B born … 2009 and C born … 2013, (“the children”) shall live with the mother.
That the mother shall have sole parental responsibility for the children for all of the major long-term issues in the children’s lives save for decisions about:
(i)the children’s names; and
(ii)changes to the children’s living arrangements that would make it significantly more difficult for the children to spend time with the father in accordance with the provisions of these Orders;
for which the mother and the father shall have equal shared parental responsibility.
That the children shall spend time with the father for up to two hours on one occasion per fortnight during the weekend at the P supervised contact centre located at Town F, Queensland or away from that contact centre as organised with the P Contact Centre management but still to be supervised by the P Contact Centre.
That the father shall be entitled to take his current partner with him to the supervised visits with the children as long as the provider of the supervision service approves of same.
That any time any member of the father’s immediate family of origin who live in India is visiting Australia and spending time with the father and he wishes to take them with him to the supervised visits with the children he shall be entitled to do so, as long as the provider of the service approves his request to do so in advance.
That the father shall only be entitled to take any other third person not already referred to in these Orders with him to…

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 Rungta and Rungta

Details

AGLC: Rungta and Rungta [2017] FamCA 845
Case: [2017] FamCA 845
Decision Date: 24 October 2017

CaseChat Overview and Summary

This case involved parenting orders concerning two children, B and C. The dispute centred on the arrangements for the children's living situation, parental responsibility, and time spent with the father, particularly in light of allegations of sexual abuse. The matter was heard by Forrest J.

The court was required to determine the best interests of the children in making parenting orders. This involved considering the paramountcy of the children's welfare, the impact of any allegations of sexual abuse, and the appropriate allocation of parental responsibility and time with each parent. The court also had to apply the civil standard of proof, as informed by the *Briginshaw* test, when considering the sexual abuse allegations.

Forrest J discharged all previous parenting orders and made new orders. The children were to live with the mother, who was granted sole parental responsibility for major long-term issues, with the exception of decisions regarding the children's names and changes to living arrangements that would significantly impede time with the father, for which they shared equal responsibility. The father's time with the children was to be supervised, limited to two hours per fortnight at a specific contact centre, with provisions for the inclusion of his partner or family from India, subject to approval. The father was ordered to pay the costs of the contact centre and any alternative centre if the arrangements were moved. The court also noted the statutory requirement to consider the children's best interests as paramount, referencing sections 60CA and 60CC of the *Family Law Act 1975* (Cth), and the application of the *Briginshaw* standard of proof for serious allegations.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the children, B born … 2009 and C born … 2013, (“the children”) shall live with the mother.

That the mother shall have sole parental responsibility for the children for all of the major long-term issues in the children’s lives save for decisions about:

(i) the children’s names; and

(ii) changes to the children’s living arrangements that would make it significantly more difficult for the children to spend time with the father in accordance with the provisions of these Orders;

for which the mother and the father shall have equal shared parental responsibility.

That the children shall spend time with the father for up to two hours on one occasion per fortnight during the weekend at the P supervised contact centre located at Town F, Queensland or away from that contact centre as organised with the P Contact Centre management but still to be supervised by the P Contact Centre.

That the father shall be entitled to take his current partner with him to the supervised visits with the children as long as the provider of the supervision service approves of same.

That any time any member of the father’s immediate family of origin who live in India is visiting Australia and spending time with the father and he wishes to take them with him to the supervised visits with the children he shall be entitled to do so, as long as the provider of the service approves his request to do so in advance.

That the father shall only be entitled to take any other third person not already referred to in these Orders with him to a supervised visit with the children with the approval of the mother and the service provider obtained in advance.

That the father shall pay the costs of the P Contact Centre.

That should the father wish to move the supervised contact from the P Contact Centre to an alternative community based, government funded, non-profit children’s contact centre located on the Gold Coast for his own reasons, he shall be entitled to do that with the mother’s agreement, or should P Contact Centre for any reason no longer be able to offer supervision of the children’s time with the father for this family, then the children’s supervised time with the father should be facilitated through one of the community based, government funded, non-profit children’s contact centre located on the Gold Coast instead, with the mother and the father being required to take all steps necessary to register with such a centre to ensure a smooth transition in arrangements as quickly as possible.

10.

That should the children’s supervised time with the father transition to a community based, government funded, non-profit children’s contact centre located on the Gold Coast, the father shall still be responsible for all of the costs charged by such centre.

11.

That the Independent Children's Lawyer be discharged.

12.

That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), 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

In that same case, the High Court also relevantly observed that:…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[3] (my emphasis) [3] At page 76. The Judges of the High Court said:…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[4][4] At page 75. The High Court Judges’ reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Act). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC) when making such parenting orders the Court thinks proper. As is well known, this Court hears large numbers of parenting cases involving allegations of sexual abuse each year. In the almost seven years I have been a Judge of the Court, I have heard and determined very many. Nevertheless, in deciding each individual such case, it remains important to reflect upon the seriousness of the central issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating. I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was twelve years ago in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129. However, I hasten to observe that the High Court Judges went on in their judgment in M v M to expressly say (at pp 76-77) the following:In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[5][5]What became known as the “Briginshaw test” following that 1938 High Court decision of Briginshaw, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:s 140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject matter of the proceeding; and(c) the gravity of the matters alleged.(d)

Ratio Decidendi

Legal Principle Established

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