Simpson & Anor and Clarke & Ors - [2014] FamCA 764

FAMILY COURT OF AUSTRALIA

SIMPSON AND ANOR & CLARKE AND ORS

[2014] FamCA 764

FAMILY LAW – CHILDREN – Risk – Whether sexual abuse or unacceptable risk are made out – Where the mother alleges the child has been sexually abused by the maternal grandfather – Where the mother alleges the maternal grandfather sexually abused her as a child – With whom the child lives – With whom the child spends time – Where the child lived with the applicants in early childhood – Parental responsibility

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 64C, 65AA, 65DAA, 65DAB.

B & B (1993) FLC 92-357
Donnell & Dovey (2010) 42 Fam LR 559
M v M (1988) 166 CLR 69
McCall & Clark (2009) 41 Fam LR 483
N & S (1996) FLC 92-655
Napier & Hepburn (2007) 36 Fam LR 395
Vigano & Desmond (2012) 47 Fam LR 552
Whitman & Burr [2011] FamCA 199

1^ST APPLICANT:

Mr Simpson

2^ND APPLICANT:

Ms Simpson

1^ST RESPONDENT:

Ms Clarke

2^ND RESPONDENT:

Mr M Clarke

3^RD RESPONDENT:

Mr Clarke

INDEPENDENT CHILDREN’S LAWYER:

C M Bint Family Lawyers

FILE NUMBER:

BRC

4979

2011

DATE DELIVERED:

5 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

4 to 8,11 & 12 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Alexander of Counsel

SOLICITOR FOR THE APPLICANTS:

East Coast Lawyers

FOR THE 1^ST RESPONDENT:

Ms Clarke in person

FOR THE 2^ND RESPONDENT:

No appearance

FOR THE 3^RD RESPONDENT:

Mr Clarke in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

C M Bint Family Lawyers

ORDERS

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All previous parenting orders are discharged.
L, born … 2001 (“the child”) live with the First and Second Applicants (“the maternal grandparents”).
The maternal grandparents, acting jointly or individually, have sole parental responsibility for the major long term issues for the child with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
Except in the event of an emergency involving the child, the maternal grandparents, or either of them, shall consult with the mother about decisions to be made in the exercise of their sole parental responsibility as follows:
(a)the maternal grandparents shall inform the mother in writing about the issue about which a decision needs to be made, the decision that it is preferred be made in respect of such issue and the reasons for that proposed decision;
(b)the maternal grandparents shall give the mother 14 days to respond;
(c)the maternal grandparents shall consider the mother’s views/response when coming to a decision;
(d)the maternal grandparents will inform the mother of the final decision made with respect to that issue as soon as practicable after the decision is made.
The child spend time and communicate with the mother at all…

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 Simpson & Anor and Clarke & Ors

Details

AGLC: Simpson & Anor and Clarke & Ors [2014] FamCA 764
Case: [2014] FamCA 764
Decision Date: 5 September 2014

CaseChat Overview and Summary

In *Simpson & Anor and Clarke & Ors*, Hogan J of the Family Court of Australia made final orders concerning the parenting of a child born in 2001. The proceedings involved the maternal grandparents (the applicants) and the child's mother and Mr Clarke (the respondents). The dispute centred on the living arrangements and parental responsibilities for the child.

The court was required to determine the primary residence of the child, the allocation of parental responsibility for long-term decisions, and the nature and extent of the child's time with and communication with the mother and Mr Clarke. Additionally, the court had to consider provisions for the exchange of information between the parties regarding the child's welfare, education, and health, as well as restrictions on communication between the child and the mother and Mr Clarke concerning the proceedings and allegations of sexual abuse.

Hogan J ordered that the child live with the maternal grandparents and that they have sole parental responsibility for major long-term issues, including education, religious and cultural upbringing, and health. The mother is to be consulted in writing on these matters, with a 14-day period for response, and her views are to be considered. The child is to spend time and communicate with the mother at agreed times, or otherwise on alternate weekends supervised at a contact centre and by telephone each Friday. The mother and Mr Clarke are restrained from discussing the proceedings, allegations of sexual abuse, or future living arrangements with the child. The court also made detailed provisions regarding the exchange of information, travel, passports, and prohibitions against denigration of parties or their families.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All previous parenting orders are discharged.

L, born … 2001 (“the child”) live with the First and Second Applicants (“the maternal grandparents”).

The maternal grandparents, acting jointly or individually, have sole parental responsibility for the major long term issues for the child with such issues to include but not be limited to:

(a) the child’s education;

(b) the child’s religious and cultural upbringing; and

Except in the event of an emergency involving the child, the maternal grandparents, or either of them, shall consult with the mother about decisions to be made in the exercise of their sole parental responsibility as follows:

(a) the maternal grandparents shall inform the mother in writing about the issue about which a decision needs to be made, the decision that it is preferred be made in respect of such issue and the reasons for that proposed decision;

(b) the maternal grandparents shall give the mother 14 days to respond;

(d) the maternal grandparents will inform the mother of the final decision made with respect to that issue as soon as practicable after the decision is made.

The child spend time and communicate with the mother at all times as may be agreed between the parties in writing and failing agreement:

(a) each alternate weekend, supervised at the C Contact Centre or such other Centre as may be agreed between the parties;

(b) by telephone each Friday, or such other day as may be agreed between the parties in writing, between 6.00pm and 6.30pm, or such other time as may be agreed between the parties in writing with the maternal grandparents to use their best endeavours to ensure the child initiate the call at the appropriate time.

Should the maternal grandparents, or either of them, consider that the mother or Mr Clarke are discussing matters not suitable for the child or upsetting to him, they are at liberty to terminate the telephone communication.

The child shall spend time and communicate with Mr Clarke during the time he is communicating and spending time with the mother.

The mother and Mr Clarke are at liberty to send cards or gifts to the child via the maternal grandparents and, provided the card or gift is age appropriate and does not contain any communication which would breach the terms of this Order, the maternal grandparents shall provide the card or gift to the child.

The maternal grandparents and the mother shall:

(a) keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 48 hours of such change;

(b) notify the other at least twenty-one (21) days prior to relocating their residence;

(c) keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child;

(d) inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the child;

(e) keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child.

10.

Any school attended by the child is hereby authorised to provide to the mother, at her request and cost, all information about the child’s educational progress and school related activities.

11.

The maternal grandparents, or either of them, shall, within 28 days of receiving the same, provide the mother with a copy of any school report in relation to the child.

12.

No party denigrate any other, their partners or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and, failing the third parties’ compliance with such a direction, each party shall remove the child from that environment immediately.

13.

During the time the child is with any party, the parties shall:

(a) respect the privacy of the other party and not question the child unduly about the personal life of the other party;

(b) speak of the other party respectfully; and

(c) not denigrate or insult the other party or the party’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the child.

14.

The mother and Mr Clarke are restrained and an injunction issue restraining them from discussing the proceedings or the issue of the allegations of sexual abuse or future living arrangements with the child.

15.

The maternal grandparents, or either of them, have liberty to provide a copy of this Order and the Reasons for Judgment to any counsellor upon whom the child attends.

16.

The maternal grandparents, or either of them, have liberty to remove the child from the Commonwealth of Australia for the purpose of holiday travel.

17.

The maternal grandparents or either of them shall provide the mother with written notice of their intention to remove the child from the Commonwealth of Australia no less than 60 days prior to any date on which it is intended that he depart from the Commonwealth of Australia.

18.

No less than 60 days prior to the date on which the child is removed from the Commonwealth of Australia, the maternal grandparents or either of them shall provide the mother with a written itinerary containing contact details for the child whilst overseas.

19.

Unless agreed between the parties in writing or occurring as a result of school related travel, any time the child travels overseas shall occur during school holiday periods and shall be no longer than one month in duration.

20.

The operation of Clause (5) of this Order shall be suspended during any time the child is overseas and any time the child would otherwise have spent with the mother and Mr Clarke pursuant to Clause (5) shall be made up as soon as can reasonably be facilitated by the Contact Centre following the child’s return to Australia.

21.

The maternal grandparents, or either of them, have liberty to obtain a passport for the child and, to the extent necessary, the mother is to sign and return any document required for this purpose within seven (7) days of receiving a request to do so.

22.

In the event that the mother fails to comply with a request to sign and return any document necessary to obtain a passport for the child, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the mother and to do all acts and things necessary to enable a passport to be obtained for the child.

23.

The Independent Children’s Lawyer is discharged.

24.

All extant applications are

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.