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Seaward & MacDuff

Seaward & MacDuff

Case [2013] FamCA 485 19 June 2013

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FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF

[2013] FamCA 485

FAMILY LAW - CHILDREN - Where parties have three children - Where highly conflicted relationship between parents - Where allegations of family violence - Numerous applications for apprehended violence orders - Where father failed to return the children and recovery order made – Children’s views - Where one child refuses to communicate or spend time with the father - Relocation - Whether children able to have meaningful relationship with both parents - Held: no unacceptable risk to children of exposure to family violence - Where terrible parental relationship poses a potent risk of harm to the children - Mother to have sole parental responsibility - Father to have limited supervised time with the children.

Crimes Act 1900 (NSW): s 314
Family Law Act 1975 (Cth): ss 64B, 61, 60, 65, 60CC

Goode & Goode (2006) FLC 93-286
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Seaward & MacDuff [2011] FamCA 1041
Seaward & MacDuff [2012] FamCA 128
Seaward & MacDuff (No 3) [2012] FamCA 731
Seaward & MacDuff (No 4) [2012] FamCA 1147
Seaward and MacDuff [2012] FAMCAFC 166

APPLICANT:

Mr Seaward

RESPONDENT:

Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

SYC

2177

2011

DATE DELIVERED:

19 June 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

21-24 May 2012, 26 October 2012 and 14 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopolous and from 24 May 2012 the father appeared in person

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

That all previous parenting and other orders in respect to B Seaward born … 1998, J Seaward born … 2004 and Z Seaward born … 2005 (“the children) be discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the children J and Z spend supervised time with the father as follows:-
(a)For a period of 3 hours each calendar month, on a day and time chosen by the mother as far as reasonably possible from the dates suggested by the father provided the nominated supervising agency is available at that time.
(b)That the mother give the father and nominated supervising agency no less than 14 days written notice of the time appointed pursuant to Order 4(a).
(c)Such time to be supervised by whichever of the following agencies that supervise children’s time with a parent the father nominates:
(i)P Contact Agency or
(ii)another private agency, or
(iii)Sydney Contact Centre or
(iv)G Contact Centre
(d)If the father’s time is supervised by P Contact Agency or another private agency it is to take place at a venue acceptable to that agency, nominated by the father, and being in the Sydney…

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 Seaward & MacDuff

Details

AGLC: Seaward & MacDuff [2013] FamCA 485
Case: [2013] FamCA 485
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered parenting orders concerning three children, B, J, and Z, in a highly conflicted relationship between their parents, Mr Seaward (the father) and Ms MacDuff (the mother). The dispute involved allegations of family violence, numerous apprehended violence order applications, and a recovery order made after the father failed to return the children. One child, B, refused to communicate or spend time with the father, while the father sought to have the children live with him and have greater contact.

The court was required to determine the children's best interests, specifically addressing the nature of their relationships with their parents and the mother's husband, the children's views, the risk of family violence, whether the mother had undermined the children's relationship with the father, whether the father had undermined the children's relationship with the mother, the effect of changing their circumstances, and the parties' capacity to cooperate as parents. The court also considered the father's contention that the children were at risk with the mother, including potential physical harm from her husband.

The court found that while the parental relationship was severely conflicted and posed a risk to the children, there was no unacceptable risk of the children being exposed to family violence. The court noted that the father's financial inability to afford supervised contact had significantly limited his time with the children. Applying the principles of the *Family Law Act 1975* (Cth), particularly concerning the children's best interests and the need to maintain their relationship with both parents where safe and appropriate, the court made orders discharging previous parenting orders.

The court ordered that the mother have sole parental responsibility for the children and that the children live with her. The father was granted limited supervised time with J and Z, for three hours per calendar month, with all costs to be borne by him. The father was restrained from denigrating the mother or physically disciplining the children, and from discussing proceedings with them. Similarly, the mother was restrained from denigrating the father or physically disciplining the children, and from discussing proceedings with them. The court also made orders facilitating telephone contact if the children wished to speak with the father, with the mother permitted to monitor calls.

Orders