Song and Wei - [2020] FamCA 368

FAMILY COURT OF AUSTRALIA

SONG & WEI

[2020] FamCA 368

FAMILY LAW – CHILDREN – Best interests of the children – Parental responsibility – Where the mother maintained throughout the proceedings and at trial that she believed the disclosures made by both children about the father’s conduct which she considered allegations of sexual abuse – Where the mother did not press for a positive finding that the father sexually abused the children and did not maintain that he posed an unacceptable risk of harm to them – Where the Court is not satisfied to the requisite standard that the father sexually abused either of the children – Where the father sought orders that the children live with him, for a period following change of residence that the children spend no time with the mother and thereafter there be a graduating regime of time with the mother with the final result being each alternate weekend with her – Where the mother at the start of the hearing sought orders that the parties equally share parental responsibility for the children, the children live with her and spend time with the father that was to commence supervised and slowly graduate to alternate weekend time – Where the expert firmly maintained that the reintroduction of time between the father and the children, particularly the daughter, needed to be supervised and therapeutically supported – Where the expert felt that it would be catastrophic for the daughter in particular to be prepared and supported for beginning to rebuild her relationship with the father through supervised time if that did not eventuate – Where the father informed the Court that he would not be able to afford even half of the cost of fees associated with supervised time with the children – Where the Independent Children’s Lawyer (“ICL”), after it came to light that the father was unwilling or unable to pay even half the fees associated with supervised time, proposed orders that the mother have sole parental responsibility for the children, the children live with her and that no orders be made for time with the father – Where the mother then adopted the orders sought by the ICL – Orders made as sought by the ICL and adopted by the mother.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65D

Deiter & Deiter [2011] FamCAFC 82
Johnson & Page [2007] FamCA 1235
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
M v M (1988) 166 CLR 69; [1988] HCA 68
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT:

Ms Song

RESPONDENT:

Mr Wei

INDEPENDENT CHILDREN’S LAWYER:

Crawford Ryan Lawyers

FILE NUMBER:

PAC

3027

2016

DATE DELIVERED:

15 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

28 January 2020 – 31 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

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 Song and Wei

Details

AGLC: Song and Wei [2020] FamCA 368
Case: [2020] FamCA 368
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the matter of *Song and Wei*, decided by Hannam J, the court addressed a dispute concerning the parental responsibility and living arrangements for two children, X and Y. The orders indicate a significant disagreement between the parents regarding the children's welfare and the allegations of sexual abuse.

The central legal issues before the court were: (a) who should have sole parental responsibility for the children; (b) with whom the children should live; (c) whether either parent should be restrained from taking the children for therapy related to sexual abuse; and (d) whether both parties should be restrained from denigrating each other or discussing the proceedings with the children.

Hannam J ordered that the mother have sole parental responsibility for the children and that they live with her. Crucially, the court imposed significant restrictions on both parents. Both parties were restrained from taking the children to any therapist for treatment of sexual abuse, and each was prohibited from denigrating the other or their family in the children's presence. Furthermore, both parents were restrained from discussing the proceedings or showing the children any related documents.

Orders

Orders of the court

The mother have sole parental responsibility for the children X born … 2011 and Y born … 2013 (‘the children”).

The children live with the mother.

Both parties are restrained from taking either child to any therapist for the purpose of receiving treatment for sexual abuse.

Each party is restrained from denigrating or abusing the other party or their family or permitting anyone to do so in the presence of hearing of the children.

Each party is restrained from discussing these proceedings or from showing the children any documents in relation to these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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