Sony & Hansell (No. 2) - [2008] FamCA 810

FAMILY COURT OF AUSTRALIA

SONY & HANSELL (NO. 2)

[2008] FamCA 810

FAMILY LAW – CHILDREN - Best interests – allegation of sexual abuse – positive finding that no abuse took place – impact of allegations of abuse on child – consideration of Re David (1997) FLC 92-778 – with whom a child spends time and communicates - best interests of a child – consideration of the term ‘meaningful’ in the context of s60CC(2)(a) - change of principal place of residence.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 61DA , 64B(2), 65DAA(1)
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
Moose & Moose [2007] FamCA 714 (12 July 2007)
Goode & Goode (2006) FLC 93-286
Napier & Hepburn (2006) FLC 93-303
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
"Re David" (Edited) (1997) 22 Fam LR 489
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Hawe & Clifford [2007] Fam CA 106
C & B [2007] FMCAfam 539
G & C [2006] FamCA 994

APPLICANT:

Ms Sony

RESPONDENT:

Mr Hansell

INDEPENDENT CHILDREN’S LAWYER:

Mr McGuire

FILE NUMBER:

LNC

512

2007

DATE DELIVERED:

11 September 2008

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

15, 16, 17 April 2008

23, 24 & 25 July 2008
18 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant in person

COUNSEL FOR THE RESPONDENT:

Mr Bugg

SOLICITOR FOR THE RESPONDENT:

Dobson Mitchell & Allport

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGuire

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGuire

Orders

The previous parenting orders in respect of … born … June 1998 (“the child”) be discharged.
The father and mother each have separate parental responsibility for the child subject to each party consulting with the other on all matters concerning the exercise of parental responsibility in relation to major long term issues concerning the child and when there is disagreement about the exercise of that power the parties will attend upon a Family Dispute Resolution practitioner or mediator to attempt to resolve the disagreement.
The child live with the father except as otherwise provided in these orders or as otherwise agreed in writing between the parties.
The child live with the mother as follows:-
(a)one half of the first and third Victorian gazetted mid year school holiday periods (being the first half of those holidays) and the whole of the second mid year Victorian gazetted school holiday periods;
(b)the first three weeks of the Victorian gazetted Christmas/New Year school holiday period in even numbered years and the last three weeks of such school holiday period in odd numbered years;
(c)two weekends per school term nominated by the mother at least twelve weeks in advance subject to the following:
i.such time shall occur in Tasmania;
ii.start and end times shall be subject to available flights but shall commence on a Friday (or Thursday, if Friday is a holiday) with the child to travel to Tasmania on the…

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 Sony & Hansell (No. 2)

Details

AGLC: Sony & Hansell (No. 2) [2008] FamCA 810
Case: [2008] FamCA 810
Decision Date: 11 September 2008

CaseChat Overview and Summary

Benjamin J of the Family Court of Australia considered parenting orders concerning a child born in June 1998. The dispute involved allegations of sexual abuse against the father, the father's alleged verbal aggression and drug use, the nature of the child's relationship with each parent, and whether the mother's belief about the child being at risk warranted a change in primary residence. The proceedings were governed by the amended Family Law Act 1975 (Cth), which came into effect on 1 July 2006.

The court was required to determine whether the child was at risk of sexual abuse in the father's care, whether allegations of abuse were false, and whether the father posed an unacceptable risk of emotional abuse to the child. The court also had to consider the impact of the mother's fixed belief regarding the risk of harm in the father's care on the child's best interests.

In reaching its decision, Benjamin J applied the principles of the amended Family Law Act, focusing on the paramount consideration of the child's best interests as outlined in section 60CA. The court considered the primary considerations under section 60CC, including the benefit of a meaningful relationship with both parents and the need to protect the child from harm. Additional considerations such as the child's views, the nature of the relationship with each parent, the parents' willingness and ability to facilitate a relationship with the other parent, and the practicalities of time spent with each parent were also taken into account. The court also examined the parents' past fulfilment of their parental responsibilities, particularly concerning major long-term issues, time spent with the child, and communication. Evidence from a school principal and a paediatrician was considered, alongside an expert report.

The court discharged previous parenting orders and made new orders. These orders established separate parental responsibility for each parent, requiring consultation on major long-term issues and dispute resolution through mediation if disagreements arose. The child was ordered to live with the father, with specific time arrangements for the child to live with the mother, including school holidays and weekends. The father was ordered to pay the child's reasonable travel costs for these arrangements, with provisions for reimbursement if the mother incurred costs due to the father's non-compliance. The orders also included provisions for communication between the child and each parent, information sharing regarding the child's health and school records, and prohibitions against drug use and abusive behaviour by either parent. The mother was restrained from certain medical examinations of the child without the father's consent or appropriate authority. An Independent Children's Lawyer was appointed to meet with the child and explain the orders, with their appointment to be discharged upon completion of this task. The court also detailed the obligations and consequences of contravening the orders in an attached Fact Sheet.

Orders

Orders of the court

The previous parenting orders in respect of … born … June 1998 (“the child”) be discharged.

The father and mother each have separate parental responsibility for the child subject to each party consulting with the other on all matters concerning the exercise of parental responsibility in relation to major long term issues concerning the child and when there is disagreement about the exercise of that power the parties will attend upon a Family Dispute Resolution practitioner or mediator to attempt to resolve the disagreement.

The child live with the father except as otherwise provided in these orders or as otherwise agreed in writing between the parties.

The child live with the mother as follows:-

(a) one half of the first and third Victorian gazetted mid year school holiday periods (being the first half of those holidays) and the whole of the second mid year Victorian gazetted school holiday periods;

(b) the first three weeks of the Victorian gazetted Christmas/New Year school holiday period in even numbered years and the last three weeks of such school holiday period in odd numbered years;

i. such time shall occur in Tasmania;

ii. start and end times shall be subject to available flights but shall commence on a Friday (or Thursday, if Friday is a holiday) with the child to travel to Tasmania on the first reasonably available flight after school concludes and to conclude on the Sunday evening.

(d) two weekends per school term nominated by the mother at least twelve weeks in advance, such time in Melbourne from Friday afternoon with the mother to collect from school until Sunday afternoon with the mother to return to the father’s home by 5pm.

The father shall pay the child’s reasonable travel costs for the purposes of orders 4 (a), 4(b) and 4(c) subject to the following:

(a) the father shall provide to the mother copies of the child’s itineraries or tickets at least fourteen (14) days prior to the relevant travel period;

(b) should the father fail to comply with paragraph (a) herein the mother is entitled at her expense to pay for the child’s reasonable travel expenses for that travel period ;

(c) the mother shall be entitled to full reimbursement from the father of any costs incurred by her pursuant to order 5(b) herein within fourteen days of any request by her.

In terms of the child’s living with the mother for the two weekends during school term in Melbourne the mother shall be responsible for her travel to Melbourne.

The child communicate by telephone with the parent with whom he is not living each Sunday between 5.00pm and 6.00pm and Wednesday between 6.00pm and 7.00pm, with the parent with whom the child is not living to instigate such telephone communication with each parent to ensure that the other parent has reasonable telephone numbers to enable this telephone communication to occur.

The child communicate with each parent by email at such other reasonable times.

The parties will keep the other party informed of any and all of the child’s general treating practitioners, specialists, dentists, orthodontists, counsellors and the like. The parties to ensure that all health records note the other party as a person with whom any doctor or any other health care professional may liaise regarding the child.

10.

The parties shall ensure that all school records shall note the other party is a person with whom the school authorities may liaise from time to time regarding the child.

11.

Both parties be restrained from taking or using any illegal drugs or narcotics or being affected by any illegal drugs or narcotics whilst the child is in their care or supervision.

12.

Both parties be restrained from abusing, belittling, intimidating or demeaning the other party or the child whilst the child is in their care or supervision.

13.

The parties shall have reasonable communication by email or such other communication as they may agree in writing for the purpose of facilitating the terms of these orders and for that purpose shall keep each other informed of a relevant email address.

14.

The mother is hereby restrained from causing or permitting the child to be examined within the meaning of section 102A of the Family Law Act without the prior written consent of

(a) the father; or

(b) a relevant child protection authority; or

15.

The Independent Children’s Lawyer or his nominee will meet with the child as soon as practicable and explain the orders and the reasons upon which these orders are based to the child AND for this purpose the mother will make the child available and ensure that the child is brought to an appointment at a time and place reasonably nominated by the Independent Children’s Lawyer or his nominee and the mother must not be present during the meeting.

16.

Upon completion of order 15 herein the appointment of the Independent Children’s Lawyer be discharged.

17.

That 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.

18.

This matter be removed from this list of cases requiring determination.

19.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

18.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

Background

Background to the litigation

Any statement of fact in these reasons is to be treated as a finding of fact, unless the contrary is to be found in the context of the statement.BACKGROUND The father is aged fifty years and there is no issue about physical health. He lives in Melbourne. He has a relationship with Ms LB. They plan to marry in the near future. The child’s parents have never lived together. The mother lives in northern Tasmania and the father lives in Victoria. The house in which the father lives is his mother’s home at S in Victoria (“the grandmother’s home”) in which he has lived for many years. When the child visits Melbourne he stays with his father at the grandmother’s home; if the child is ordered to live with the father he will live at that home, for the short term at least. The father has the assistance and support of his family including Ms LB, the child’s paternal grandmother, the father’s brother and sister-in-law. The mother concedes that the child loves his extended family. The mother resides in the north-west of Tasmania with the child and his sister E, now aged nineteen. E is a child of a relationship between the mother and another person. E has epilepsy and autism. She is mildly intellectually challenged. The mother is occupied in her role as carer for the child and E and undertakes some part time work in support services. The issues in these proceedings relate to:-(a)the question of whether, as a consequence of events which have occurred since February 2006, the child is at risk of sexual abuse in the care of the father;(b)whether the father is verbally aggressive to the child;(c)the nature of the relationship between the child and his parents;(d)whether the father abuses drugs, in particular, cannabis, and whether such use (if it in fact occurs) impacts upon the father’s ability to parent the child;(e)whether the mother’s fixed belief that the child is at risk in the care of the father is such as would warrant a change of primary residence. Neither party sought to appeal the orders made by me in March 2006. Since 9 March 2006 the law relating to parenting has changed with the amendments to the Family Law Act1975 (Cth) (“the Act”) which came into effect on 1 July 2006. The trial commenced before me on 15 April 2008 and after hearing evidence from experts on 17 April 2008 I was concerned about the impact of these proceedings on the child with the limited options available to me at that time (that the child live with the mother and spend holiday time and other limited time with the father) or visa versa. As a consequence and after discussions with the parties, a consent arrangement was entered into in that the child would live with the father at the grandmother’s home for the following three to four months. The mother asserted in subsequent affidavit material that she was not aware that it was going to be this long. A report was obtained from a family consultant as to the impact on the child of that three month period and the parties filed further affidavits. The hearing resumed on 23 July and concluded on 25 July 2008.

Evidence

Evidence Before The Court

In terms of the question of risk of abuse to a child the underlying principles, as outlined in my earlier reasons, have not changed. The questions to which I have to address my mind are:-i.whether there was in fact abuse by the father in relation to the child;ii.whether the allegation is a false allegation made by or through the mother;iii. if I make no finding in relation to (i) and (ii) above, whether the child is at an unacceptable risk of abuse in the care of the father;iv. whether the allegations of abuse are such that they amount to an unacceptable risk of emotional abuse of the child by the mother.EVIDENCE & DISCUSSION This was a matter which was dealt with under Division 12A of Part VII of the Act. The independent children’s lawyer tendered a report of Dr AD, consultant[1] Exhibit ICL3paediatrician for the North West Regional Hospital, dated 4 September 2007[1]. Dr AD was available for cross-examination. The independent children’s lawyer filed in court an affidavit of Ms T, the Principal of the child’s school. Her evidence was the child was in Grade 4 in 2008. Her further evidence was:-5.His [the child’s] behaviour both in and out of class is described as normal.6.The child has no strong social peer group in 2008 but gets on well enough with his fellow students. He completes his work satisfactorily and presents no problem in class.7.I am advised by the child’s teacher that he made no comments whatsoever about his father or any contact trips to Melbourne. In fact, the teacher has unable to presume as to whether, in fact, there had been any contact between the child and his father in Melbourne or otherwise.8.In summary, the child is this year progressing well both personally and academically. Her further evidence was that the child had only missed one day of school in 2008 calendar year. In the 2007 calendar year the child missed twenty nine full days, two afternoons, one morning and three other days during the course of the 2007 calendar year. The total absences in full days was 30.5 days (some six weeks of school). In terms of 2007 Ms T observed:“[The child] exhibited severe behavioural problems in 2007 and that this related directly to his relationship with another child. [The child] and this other child were separated in 2008 and there has been a dramatic improvement in [the child’s] behaviour.” In the mother’s affidavit filed 17 December 2007 she observed:-24.[The child] has been constantly in trouble at school in the months surrounding the disclosure and prior to this, he has had not received any slips at school for misbehaviour nor had he been involved in any reckless or destructive behaviour. Around that time I was asked to collect [the child] earlier from school because he had climbed on top of, and stood on the school principal’s car. He had also been issued with a slip for unkind and bullying behaviour and I have caught him stealing at home. An expert report was prepared by the single expert and is dated 15 November 2007[2] (“the expert’s report). At paragraph 40 of that report (page 8) the single expert said:-[2] Exhibit ICL 240.Asked about [the child’s] acting out at school, [the mother] said that [the child] knew the orders would change (and the requirement for someone else to be present whilst he was in the father’s care would expire) when he turned nine and she seemed to infer that this acting out was in response to this fact.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Full Court in Goode & Goode (2006) FAM CA 1346 set out the structure of the 2006 amendments (albeit in relation to interim hearings but the structure still applies in relation to final hearings) which provided as follows:5.The Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the amending Act”) came into effect on 1 July 2006 and was the law that governed his Honour’s decision. The amending Act builds upon the framework of the legislation as it was prior to 1 July 2006. Part VII of the Act applies to children. There are 16 Divisions to Part VII. The significant sections for present purposes follow.6.Orders concerning parental responsibility, who the child is to live with and spend time with, and the communication a child is to have with another person or other persons are all parenting orders. Section 64B(2) provides that a parenting order may deal with one or more of the following:(a) the person or persons with whom a child is to live;(b) the time a child is to spend with another person or other persons;(c) the allocation of parental responsibility for a child;(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;(e) the communication a child is to have with another person or other persons;(f) maintenance of a child;(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:(i) a child to whom the order relates; or(ii) the parties to the proceedings in which the order is made;(h)the process to be used for resolving disputes about the terms or operation of the order;(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.Section 64B(3) provides:Without limiting paragraph (2)(c), the order may deal with theallocation of responsibility for making decisions about majorlong-term issues in relation to the child.7. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) parents should agree about the future parenting of their children; and(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a) to maintain a connection with that culture; and(b) to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii) to develop a positive appreciation of that culture.8.Section 60CA deals with the best interests of the child and provides that:In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. This provision of the legislation was formerly s 65E and the wording of the section has not changed. 9.In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:Primary considerations(2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).Additional considerations(3) Additional considerations are:(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b)the nature of the relationship of the child with:(i) each of the child’s parents; and(ii) other persons (including any grandparent or other relative of the child);(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f) the capacity of:(i) each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h) if the child is an Aboriginal child or a Torres Strait Islander child:(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii)the likely impact any proposed parenting order under this Part will have on that right;(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j) any family violence involving the child or a member of the child’s family;(k) any family violence order that applies to the child or a member of the child’s family, if:(i) the order is a final order; or(ii) the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m) any other fact or circumstance that the court thinks is relevant.Section 60CC(4) provides:Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:(a) has taken, or failed to take, the opportunity:(i) to participate in making decisions about major long-term issues in relation to the child; and(ii) to spend time with the child; and(iii) to communicate with the child; and(b) has facilitated, or failed to facilitate, the other parent:(i) participating in making decisions about major long-term issues in relation to the child; and(ii) spending time with the child; and(iii) communicating with the child; and(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.Section 60CC(4A) provides:If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.