RUTH (AKA HUTTON) & HUTTON
[2010] FamCAFC 208
•21 October 2010
FAMILY COURT OF AUSTRALIA
| RUTH (AKA HUTTON) & HUTTON | [2010] FamCAFC 208 |
| FAMILY LAW - APPEAL – Parenting – Application for hearing of the appeal to be expedited – Where the application was not opposed by the respondent or the Independent Children’s Lawyer – Where the orders appealed against altered dramatically the longstanding arrangements for the child – Where it was found there was no unacceptable risk of sexual abuse in the father’s care – Where there was an unacceptable risk of emotional abuse in the mother’s care – Where the delay in hearing the appeal may cause emotional distress to the child – Given the age of the child and the radically different arrangements being imposed by orders from that existing prior to the time of trial – Application allowed. FAMILY LAW - COSTS – Costs reserved to the Full Court after the determination of the appeal |
| Family Law Act 1975 (Cth) s 60CC |
| APPELLANT: | Ms Ruth (aka Hutton) |
| RESPONDENT: | Mr Hutton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 6188 | of | 2008 |
| APPEAL NUMBER: | NA | 114 | of | 2010 |
| DATE DELIVERED: | 21 October 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 21 October 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 September 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 914 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Wiltshire Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Conradie & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The hearing of the appeal be expedited.
The costs of the appellant and respondent be reserved to the Full Court after the determination of the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Ruth (aka Hutton) & Hutton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 114 of 2010
File Number: BRC 6188 of 2008
| Ms Ruth (aka Hutton) |
Appellant
And
| Mr Hutton |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
An application was filed by the mother on 4 October 2010 asking that the appeal filed by her on 1 October 2010 be expedited. The solicitor who appears today for the respondent father submits that that application is not opposed, nor was there any objection by the solicitor for the independent children’s lawyer.
There are 12 grounds of appeal. The mother asks that the matter be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Cassidy and, that pending the re-hearing, the orders made on 28 September 2010 be stayed. In the interim the mother seeks that the orders of 1 April 2010 remain in force and that the father pay her costs of and incidental to the appeal. The Federal Magistrate refused an application for a stay.
The parties’ application in the Federal Magistrates Court concerned parenting arrangements for L (“the child”) born in June 2005, who is now 5 years old.
On 28 September 2010 Federal Magistrate Cassidy made orders in relation to the child. In summary, it was ordered that:
· the child be released from childcare and into the care of the father;
· the child live with the father;
· the father have sole parental responsibility in respect of all major long-term issues in respect of the child. Prior to making a “sole ultimate decision”, as it is described by the Federal Magistrate, however, the father must advise the mother of the decision, seek her response, and consider the best interests of the child. The mother must then be informed of the decision in writing;
· the father take all necessary steps to keep the mother informed of the child’s health and schooling;
· the mother be restrained from taking the child to any counsellor or therapist without the consent of the father;
· the child spend supervised time with the mother and have supervised telephone communication;
· the parties, their servants and/or agents be restrained by injunction from removing or attempting to remove the child from the Commonwealth of Australia until 1 January 2013.
Orders were also made allowing the mother the opportunity to apply for a variation of the terms of these orders, 12 months from the date the mother commences supervised time with the child, provided she has not breached any provision of the orders. The orders created a radical change in the child’s arrangements with his parents.
Background
In support of her application, the mother filed an accompanying affidavit. This document sets out the procedural history of the matter and the child’s care arrangements prior to the 28 September 2010 orders. The mother’s perception of the events of the day the orders were made are included.
The mother explains that the parenting proceedings in relation to the child commenced in 2008 and that throughout this lengthy procedural history, all the orders provided that the mother be the primary carer of the child. This was said to continue the role the mother played in the child’s life throughout the parties’ relationship. The mother contends that she has been actively involved in all aspects of the child’s daily routine and that she has been an active participant in the child’s education.
The mother asserts that the father did not seek to challenge this role until he commenced court proceedings. The father consented on 2 December 2009 to orders, which provided that the child remain in the mother’s primary care, while periodically increasing the father’s time with the child, until such time as, ultimately, the child was to be in a shared care arrangement.
On the date the judgment was delivered the mother delivered the child to the childcare facility in the Family Court of Australia building, prior to the Federal Magistrate pronouncing judgment.
The orders had the effect that the child would be released directly from the childcare facility into the father’s care. Counsel for the mother sought a stay of the orders, however this application was denied.
The mother says that she was given fifteen minutes to explain the situation to the child and to calm him. This was supervised by a family consultant.
As a result of the orders, the mother was unable to communicate with the child for a period of one week, and is unable to have contact with the child for one month. After this time the mother is to be able to spend short periods of supervised time with the child.
The mother submits that the removal of the child from her care altered the primary care arrangements which had been in place since the child’s birth. The child, it is asserted, has never gone without seeing or communicating with the mother for any extended period of time. As a result, the mother is concerned about the effect the orders may have on the child and requests that the hearing of the appeal be expedited to circumvent unnecessary distress to the child.
Judgment of the Federal Magistrate
In the reasons for judgment of the Federal Magistrate, her Honour outlined the proposals of the parties and provided a comprehensive background and procedural history of the matter. The trial judge then set out the relevant law in respect of the proceedings.
It was noted by her Honour “that the issues of domestic violence were a key feature of the mother’s case leading up to the trial on 2 December 2009”, but that there was no judicial determination of the issue of domestic violence and the father’s abuse of the child, as that trial was settled by consent. In the proceedings before her Honour, it was submitted by counsel for the mother that it was not for the Federal Magistrate to determine those issues. This was accepted by her Honour to some extent.
The father alleged however, that the child was at risk of emotional abuse in the care of the mother. As the father’s time with the child was suspended because of the allegations of domestic violence made by the mother, the trial judge considered the nature and effect of the allegations to be relevant to her determination.
Her Honour was concerned that the mother did not persist with obtaining a final protection order despite the seriousness of the allegations she raised in relation to the father. This concern was exacerbated by the fact that the mother consented to the orders for equal shared parental responsibility and for the child to have unsupervised time with the father.
In the reasons for judgment, the Federal Magistrate said that she accepted the evidence of Ms B, the family report writer. Ms B’s view was that she did not consider the child to be at an unacceptable risk of abuse in the father’s care and that the child had a positive relationship with both parents. Ms B commented that the mother’s and child’s reports of various incidents are not consistent, that the child did not appear to be distressed when telling the police of the “sexual incidents”, and that the child has not exhibited sexualised behaviours anywhere except in the mother’s household.
Her Honour, in her summary of the section characterised as “Sexual Abuse” concluded that:
83.I am however satisfied that there is a risk of emotional harm if the child remains in the mother’s care because:
a)The string of domestic violence allegations over two years resulted in the father’s contact being stopped from time to time and supervised at other times. This is despite the mother consenting to unsupervised time when the final hearing was about to proceed; and
b)The allegations of sexual abuse can place the child at risk of emotional harm if they result in the need for supervised contact when there is no unacceptable risk of harm of sexual abuse present.
In dealing with the primary considerations contained in section 60CC of the Family Law Act 1975 (Cth) (“the Act”). Her Honour found that it was important for the child to have a meaningful relationship with both parents and that there was a need to protect the child from being exposed to the risk of abuse. The trial judge said:
86.I consider the child is at risk of emotional abuse if he remains in the mother’s care because she will continue to make allegations of the father’s abuse of the child and this will result in the child having periods of no time or supervised time with the father.
Under the heading “Parenting and Discharge of Parenting Responsibilities” her Honour stated that the mother had not encouraged the father to participate in making decisions in relation to the child.
The trial judge was mindful of the “serious effect” that the separation of the child from his mother would bring, however her Honour stated that “[t]his has to be balanced against the unacceptable risk of emotional harm if I were to leave the child in the mother’s care unsupervised”.
Conclusion
I have been advised, by the Appeals Registrar, that it is possible for the Full Court sitting in Brisbane to hear the matter on Wednesday 24 November 2010.
Having considered the circumstances of the case, I am of the view that this matter should be expedited, giving particular weight to the age of the child and the effect on the child of such radically different arrangements being imposed from that existing prior to the time of trial. To some extent I am also influenced by, although one may not say support, that the application is not opposed by the respondent father nor by the Independent Children’s Lawyer.
In order to facilitate the expedition of the appeal it is necessary to adhere to a strict timetable. I am informed by the solicitor who represents the mother that this is possible. An appeal index will have to be filed no later than 27 October 2010. A draft has been provided already to the Appeals Registrar. A procedural hearing before Registrar Spink, is to be scheduled, I understand for 12.00pm on 28 October 2010. The appeal books will need to be filed by 5 November 2010. The summary of arguments of the appellant, respondent and the Independent Children’s Lawyer will need to be received shortly thereafter, but I will leave it entirely to the Appeals Registrar to make those directions. The transcript of the proceedings before the Federal Magistrate I understand has been ordered and will be received in the coming days. On the condition that those timelines can be met the appeal will be heard on 24 November 2010.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 21 October 2010.
Associate:
Date: 27 October 2010
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