Smythe & Leopold (No. 2) - [2012] FamCA 350

FAMILY COURT OF AUSTRALIA

SMYTHE & LEOPOLD (NO. 2)

[2012] FamCA 350

FAMILY LAW - CHILDREN - allegation of sexual abuse – question of unacceptable risk – mother coaching child - whether to make a negative finding – change of primary parent with recommendation from Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA, 65DAA

Hartford and Ansilda [2009] FamCA 23

APPLICANT:

Mr Smythe

RESPONDENT:

Ms Leopold

INDEPENDENT CHILDREN’S LAWYER:

Mr Patrick Fitzgerald

FILE NUMBER:

LNC

391

2008

DATE DELIVERED:

16 May 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

16, 17 & 18 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marcus Turnbull

SOLICITOR FOR THE APPLICANT:

Levis Stace & Cooper

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Patrick Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

Previous parenting orders in respect of E Smythe born January 2006 (“the child”) are discharged.

PARENTAL RESPONSIBILITY

Subject to these orders Mr Smythe (“the father”) have sole and exclusive parental responsibility for the child.
The father must:-
(a)Inform Ms Leopold (“the mother”) of his intention to make a decision about long term major issues prior to its implementation (save for a medical emergency – in which case he will inform the mother as soon as is reasonably practicable) to ensure the mother can genuinely be involved in relation to such decision.
(b)Consult with the mother in relation to decisions to be made about long term major issues; and
(c)Make a genuine effort to take into account the mother's views about such issues including, but not limited to if that view is rejected to give an explanation as to why the view is rejected;
The father is to use his best endeavours to ensure appropriate records of schools, churches, medical providers, hospitals, and the like and note the mother as a person with whom that entity or person may provide information. This being in terms of the child's care, including issues of education, religious and cultural upbringing, health and changes to the child's living arrangements.
In the event the child is recognised by an Aboriginal community as being Aboriginal, Order 2 is conditional upon and requires the father to actively engage the mother, as culturally required, in any decision or activity regarding the child's aboriginality.
Subject to any medical emergency the mother be restrained from presenting the child to any medical or other health care professional without first obtaining the permission of the father and to remove any doubt the mother is not to present the child for the purposes of investigating alleged abuse without first contacting the appropriate Child Protection Authorities, Police and the father.
The child shall live with the father.
The mother spend time with the child at dates and times as agreed between the mother and father. Such time to be supervised as agreed between the parties or…

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 Smythe & Leopold (No. 2)

Details

AGLC: Smythe & Leopold (No 2) [2012] FamCA 350
Case: [2012] FamCA 350
Decision Date: 16 May 2012

CaseChat Overview and Summary

In *Smythe & Leopold (No. 2)*, Benjamin J of the Family Court of Australia considered parenting orders concerning a child born in January 2006. The dispute involved the father, Mr Smythe, and the mother, Ms Leopold, regarding the child's upbringing and welfare.

The court was required to determine the extent of parental responsibility for the child, including decision-making regarding long-term major issues, and to establish the living arrangements for the child. Further issues included the nature and supervision of the mother's time with the child, communication between the child and her siblings, and restrictions on the mother regarding medical treatment and the child's schooling. The court also had to address the sensitive matter of allegations of sexual abuse and the child's potential Aboriginality.

Benjamin J ordered that previous parenting orders be discharged. The father was granted sole and exclusive parental responsibility, with specific obligations to inform and consult the mother on long-term major decisions, and to genuinely consider her views, providing explanations for any rejections. The child was to live with the father, and the mother was to have supervised time with the child as agreed or ordered. The father was also directed to promote the child's relationship with her siblings and to facilitate telephone communication. The mother was restrained from presenting the child for medical care without the father's permission, except in emergencies, and was prohibited from removing the child from school without consent or court direction. Crucially, neither parent was permitted to discuss allegations of sexual abuse with the child unless directed by a medical or mental health practitioner. The father was ordered to provide relevant documents to the child's medical practitioner to facilitate appropriate support programs for the child.

Orders

Orders of the court

Previous parenting orders in respect of E Smythe born January 2006 (“the child”) are discharged.

PARENTAL RESPONSIBILITY

Subject to these orders Mr Smythe (“the father”) have sole and exclusive parental responsibility for the child.

The father must:-

(a) Inform Ms Leopold (“the mother”) of his intention to make a decision about long term major issues prior to its implementation (save for a medical emergency – in which case he will inform the mother as soon as is reasonably practicable) to ensure the mother can genuinely be involved in relation to such decision.

(b) Consult with the mother in relation to decisions to be made about long term major issues; and

(c) Make a genuine effort to take into account the mother's views about such issues including, but not limited to if that view is rejected to give an explanation as to why the view is rejected;

The father is to use his best endeavours to ensure appropriate records of schools, churches, medical providers, hospitals, and the like and note the mother as a person with whom that entity or person may provide information. This being in terms of the child's care, including issues of education, religious and cultural upbringing, health and changes to the child's living arrangements.

In the event the child is recognised by an Aboriginal community as being Aboriginal, Order 2 is conditional upon and requires the father to actively engage the mother, as culturally required, in any decision or activity regarding the child's aboriginality.

Subject to any medical emergency the mother be restrained from presenting the child to any medical or other health care professional without first obtaining the permission of the father and to remove any doubt the mother is not to present the child for the purposes of investigating alleged abuse without first contacting the appropriate Child Protection Authorities, Police and the father.

The child shall live with the father.

The mother spend time with the child at dates and times as agreed between the mother and father. Such time to be supervised as agreed between the parties or otherwise ordered by a court exercising jurisdiction under the Family Law Act.

The father will do all things reasonable to promote the relationship between the child and her siblings including, but not limited to Ms Y and for that purpose the father will liaise with Ms Y to arrange regular times that the child and Ms Y may see each other.

10.

The mother and child have telephone communication each Monday and Thursday at 7.30 p.m.

11.

The father will do all things reasonable to promote continuing telephone communication between the child and her siblings, particularly Ms Y.

12.

The mother be restrained from removing the child from any school which the child attends save and except with the written permission of the father or at the direction of a Court, Child Welfare Services, Police or school authority.

13.

Neither parent discuss the allegation of sexual abuse with the child save and except at the direction of the child's mental health or medical practitioner or allow others to discuss the allegation in the presence of the child.

14.

The father provide a copy of these orders, the reasons on which they are based the reports of Mr J of 29 May 2009, 17 November 2010 and 29 November 2010 and the Family Report of 2 August 2011 to the child's general medical practitioner and/or any mental health practitioner, for the purposes of considering enrolling the child in appropriate programs to help her manage her parents’ conflict, including the changes in her living arrangements to date and to help her cope with her family circumstances (including separation from her siblings) as identified in recommendations 11 and 12 of the Family Report with such counseling or engagement with the program only to occur if recommended by the child's general practitioner and for that purpose the father will take the child to the general practitioner with a copy of this Order and the Family Report.

15.

Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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.