S & S - [2001] FMCAfam 185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S [2001] FMCAfam 185

FAMILY LAW – Contact – allegations of sexual abuse – finding that unsupervised contact would expose child to an unacceptable risk of sexual abuse – discussion of the advantages and disadvantages of supervised contact.

Applicant:

B J S

Respondent:

J J S

File No:

ZC 2254 of 2000

Delivered on:

28 September 2001

Delivered at:

Canberra

Hearing Dates:

18, 19 & 20 April 2001

17, 18, 19 & 20 July 2001
18, 19 & 20 September 2001

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski

Solicitors for the Applicant:

Chris Crowley & Associates

Counsel for the Respondent:

Mr Hodgson

Solicitors for the Respondent:

Anne Marie Proctor & Associates

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA

ZC 2254 of 2000

B J S

Applicant

And

J J S

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns issues of contact between the father, J S and his child, J C S. The father seeks unsupervised contact on weekends and during school holidays. The mother opposes any order for contact.

Background

The father is aged 34 and the mother 33. They were married on
18 June 1994. Their only child, J, was born on 31 March 1996. J is therefore now aged five.
The parties separated in 1999. At the time, they were living in C. The mother continues to live there. The date of separation is a matter of dispute between the parties. The mother says that is was July of that year. She says the husband left the matrimonial home at this time but later returned. The husband does not agree that this occurred. All agree, however, that in October of that year, the father moved out of the former matrimonial home and did not return. It is not necessary to make a finding as to which version is to be preferred.
A couple of weeks after leaving the former matrimonial home the father moved from C to Sydney. He returned to C every second weekend and saw J on these occasions. This contact occurred at the former matrimonial home with the mother present.
On 1 May 2000, orders were made by consent in the C Local Court. These provided that J live with her mother and that the father have contact "at such times as agreed between the parties".
In July 2000, the father moved to T. He spoke to J frequently on the telephone, but there was no face-to-face contact during this period.
In the meantime, the mother had commenced a relationship with M D. This commenced in early 2000 and Mr D moved into her home in July of that year. They have lived together since that time. They plan to marry.
In September 2000, the father returned to Sydney. On 23 September, he visited C for six days. He had contact with J from 9 am to 6 pm on each of these days. This contact did not occur in the former matrimonial…

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: [2001] FMCAfam 185
Decision Date: 28 September 2001

CaseChat Overview and Summary

This case involved an application by B J S ("the father") for unsupervised contact with his five-year-old daughter, J C S ("the child"). The child's mother, J J S ("the mother"), opposed any contact with the father, alleging that the father had sexually abused the child. The matter was heard over a number of days. The father sought unsupervised contact on weekends and during school holidays, while the mother opposed any order for contact. The mother raised concerns about the father's violent past and alleged sexual abuse. The court found that unsupervised contact would expose the child to an unacceptable risk of sexual abuse. However, it did not believe that the Full Court cases of B v B (1993) and K v B (1994) precluded any order for supervised contact. The court held that each case must depend on its facts and must involve a weighing of the negative aspects of supervised contact with the positive benefits that such contact might provide. The court found that the mother's psychological state was being negatively affected by the continued contact between the father and the child. However, it also found that there were real benefits for the child in continuing a relationship with the father. The court concluded that contact should be restricted to four times a year and should be supervised by a professional independent person or organisation. The court also made orders to prevent the father from abducting the child and to ensure that the father and mother had limited contact with each other.

Orders