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St Claire & St Clair and Ors

St Claire & St Clair and Ors

Case [2013] FamCA 108 27 February 2013

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FAMILY COURT OF AUSTRALIA

ST CLAIRE & ST CLAIRE AND ORS

[2013] FamCA 108

FAMILY LAW – CHILDREN – introduction to father after long absence – violence and intimidatory behaviour considered – Orders for therapeutic intervention followed by contact centre supervision.

Family Law Act 1975 (Cth)

Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Loddington & Derringford (No 2) [2008] FamCA 925
M & M (1988) 166 CLR 69
Pishke & Rupp; Bannon & Rupp [2010] FamCA 632
Sigley & Evor [2011] FamCAFC 22

APPLICANT:

Ms St Claire

RESPONDENT:

Mr St Claire

2^ND RESPONDENT:

E Pty Ltd

3^RD RESPONDENT:

Mr G

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9777

2010

DATE DELIVERED:

27 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

3, 4, 5, 6, 9, 10, 11 July 2012; 29, 30, 31 January 2013; 1, 4 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Davis

SOLICITOR FOR THE APPLICANT:

Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Tisher Liner FC Law

COUNSEL FOR THE 3^RD RESPONDENT:

Mr Searle

SOLICITOR FOR THE 3^RD RESPONDENT:

G & I Sanicki Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cathleen M Corridon

Orders

That the wife have sole parental responsibility for the children D born … December 1999 and K born … August 2005.
That all extant parenting orders are otherwise discharged.
That the children live with the wife.
That the wife, with the assistance of the Independent Children’s Lawyer, organize for K to attend upon a therapist for the purposes of endeavouring to create a healthy parent and child relationship with the husband.
That the husband indicate whether he is willing to attend upon such therapist and participate in such therapy, at his expense, as the therapist considers necessary to fulfil paragraph 4 hereof.
If by 4.00pm on 15 March 2013, the husband has not indicated in writing to both the solicitor for the wife and also the Independent Children’s Lawyer, an unequivocal acceptance of the said therapy and that he will pay for it, then paragraph 4 is automatically discharged and there shall be no contact thereafter between the husband and K without further order.
That any contact between the husband and D shall be by arrangement between them.
If the husband agrees to the therapy in paragraphs 4 and 5, the therapy begin as soon as practicable.
Other than for the purposes of assisting the implementation of the therapy, the Independent Children’s Lawyer is discharged as and from 1 May 2013.
The therapist referred to in these orders shall be given a copy of the reasons published this day and a copy of these orders.
Upon the therapist deciding that the therapy shall commence, the wife do all things necessary to bring K to that person and thereafter facilitate all sessions.
Upon the therapist deciding that it is appropriate to begin contact between…

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 St Claire & St Clair and Ors

Details

AGLC: ST CLAIRE & ST CLAIRE AND ORS [2013] FamCA 108
Case: [2013] FamCA 108
Decision Date: 27 February 2013

CaseChat Overview and Summary

In the matter of *St Claire & St Clair and Ors*, Cronin J determined parenting orders concerning the children D and K. The dispute involved the wife seeking sole parental responsibility for both children and orders for them to live with her. The husband's willingness to engage in therapeutic intervention was a central consideration in the court's determination of future contact arrangements.

The court was required to determine the most appropriate parenting arrangements for the children, specifically addressing issues of parental responsibility, living arrangements, and the nature and extent of contact between the husband and the children. A key legal issue was how to facilitate a healthy parent-child relationship between the husband and K, given the circumstances, and the conditions under which such contact should occur. The court also considered the role of the Independent Children’s Lawyer and the potential consequences of non-compliance with its orders.

Cronin J ordered that the wife have sole parental responsibility for D and K, and that the children live with the wife. All prior parenting orders were discharged. The court mandated that the wife, with the assistance of the Independent Children’s Lawyer, arrange for K to attend therapy to foster a healthy parent-child relationship with the husband. The husband was required to indicate his willingness to attend and pay for such therapy. Failure to unequivocally accept this by a specified date would result in the discharge of the therapy order and no further contact between the husband and K without further order. Contact between the husband and D was to be by arrangement between them. If the husband agreed to therapy, it was to commence promptly. The court outlined a phased approach to supervised contact for K, commencing with therapy and potentially progressing to supervised contact at a centre for a minimum of 12 months, followed by unsupervised contact on alternate weekends. The husband was otherwise restrained from contacting K, except for sending cards, letters, and presents through the wife. The therapist's determination regarding the benefit of contact was to be in writing, with the possibility of limiting contact to cards, letters, and presents if deemed not beneficial.

Orders

Orders of the court

That the wife have sole parental responsibility for the children D born … December 1999 and K born … August 2005.

That all extant parenting orders are otherwise discharged.

That the children live with the wife.

That the wife, with the assistance of the Independent Children’s Lawyer, organize for K to attend upon a therapist for the purposes of endeavouring to create a healthy parent and child relationship with the husband.

That the husband indicate whether he is willing to attend upon such therapist and participate in such therapy, at his expense, as the therapist considers necessary to fulfil paragraph 4 hereof.

If by 4.00pm on 15 March 2013, the husband has not indicated in writing to both the solicitor for the wife and also the Independent Children’s Lawyer, an unequivocal acceptance of the said therapy and that he will pay for it, then paragraph 4 is automatically discharged and there shall be no contact thereafter between the husband and K without further order.

That any contact between the husband and D shall be by arrangement between them.

If the husband agrees to the therapy in paragraphs 4 and 5, the therapy begin as soon as practicable.

Other than for the purposes of assisting the implementation of the therapy, the Independent Children’s Lawyer is discharged as and from 1 May 2013.

10.

The therapist referred to in these orders shall be given a copy of the reasons published this day and a copy of these orders.

11.

Upon the therapist deciding that the therapy shall commence, the wife do all things necessary to bring K to that person and thereafter facilitate all sessions.

12.

Upon the therapist deciding that it is appropriate to begin contact between the husband and K outside of the therapy sessions, he or she shall advise both the husband and the wife to enrol in a contact centre for supervised contact to begin as soon as practicable thereafter and the contact centre shall be the one most quickly able to assist providing the distance is reasonably practicable from the wife.

13.

The supervised contact shall be on the usual terms and conditions of that centre but for a minimum period of 12 months.

14.

After 12 months, the husband shall spend unsupervised time with K on each alternate weekend from 10.00am on Saturday to 5.00pm on Sunday but:

(a) the handovers shall continue to be at the contact centres; and

(b) the husband shall advise the wife the address at which K is to stay.

15.

That any further contact time, including holidays and special occasions, shall be by agreement and failing agreement, upon application to the Court.

16.

That save as to the times provided by these orders, the husband be restrained from contacting K other than that the husband may send cards, letters and presents to K care of the wife who shall give them to the child.

17.

If the therapist determines that it would not be beneficial for K to have any contact with the husband, that determination shall be in writing to the husband with an explanation as to why. Thereafter, the husband shall be limited to cards, letters and presents as described in paragraph (16) hereof.

18.

That all applications are otherwise dismissed.

19.

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.

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.

Citations

AGLC Citation

ST CLAIRE & ST CLAIRE AND ORS [2013] FamCA 108

Most Recent Citation

Stockdale & Nowak [2022] FedCFamC1F 460

Cases citing this decision · 7 of 7 shown

Vrolijk & Beaulne
[2023] FedCFamC1F 416 Para 30

…In St Claire & St Clair and Ors [2013] FamCA 108, Cronin J was confronted with a seven year old child who had not had any contact with their father for three years. The child's 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father, was…
Pelham & Jupp
[2022] FedCFamC1F 879 Para 46

…In St Claire & St Clair and Ors [2013] FamCA 108, Cronin J was confronted with a seven year old child who had not had any contact with their father for three years. The child’s 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father, was…
Stockdale & Nowak
[2022] FedCFamC1F 460 Para 10

…In St Claire & St Clair and Ors [2013] FamCA 108 Cronin J was confronted with a seven year old child who had not had any contact with their father for three years. The child’s 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father was su…
Peat and Northup (No 2)
[2020] FamCA 1123 Para 10

…In St Clarie & St Claire and Ors [2013] FamCA 108, Cronin J was faced with a child that was five years old at the date of separation but eight years old when judgment was delivered. The father had not had any contact with the child since separation. His Honour determined that the appropriate course was to make fina…
Smith and Duke
[2016] FamCA 131 Para 11

…In St Claire & St Clair and Ors [2013] FamCA 108 Cronin J was confronted with an eight year old child who had not had any contact with his father for three years. The child’s 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father was sub…
MALAK & MAIRIE
[2015] FamCA 563 Para 17

…In St Clarie & St Claire & Ors [2013] FamCA 108, Cronin J was faced with a child that was five years old at the date of separation but eight years old when judgment was delivered. The father had not had any contact with the child since separation. His Honour determined that the appropriate course was to make final…
Cholic and Cholic
[2014] FamCA 234

…all & Clark (2009) FLC 93-405 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Sigley & Evor (2011) 44 Fam LR 439 St Claire & St Claire and Ors [2013] FamCA 108 Vasser & Taylor-Black (2007) FamCA 547 Wang & Dennison [2009] FamCA 206…

View all 7 citing cases →

Cases cited in this decision · 6 of 6 shown

Sigley & Evor
[2011] FamCAFC 22 Para 3

…In Sigley & Evor [2011] FamCAFC 22, the Full Court examined a number of judicial approaches to the meaning of meaningful relationship and said: 131.As to the definition of “meaningful”, which appears in s 60B(1)(a) of the Act, being the first object of Pt VII, and s 60CC(2)(a), being the first primary consideration,…
Pishke & Rupp; Bannon & Rupp
[2010] FamCA 632 Para 10

…ary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a…
Loddington & Derringford (No 2)
[2008] FamCA 925 Para 5

…As I said in Loddington & Derringford (No 2) [2008] FamCA 925: There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.…
G & C
[2006] FamCA 994 Para 3

…relationship”. The Full Court observed at 83,476: 117.Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child. 118…
M v M
[1988] HCA 68 Para 2

…It is also important to mention that the wife made allegations of sexual abuse against the husband. The High Court of Australia in M & M (1988) 166 CLR 69 addressed the approach in parenting cases to such allegations and that has been my focus in assessing the evidence of the parties. The Court said: [T]he ultimate…
Mazorski v Albright
(2007) 37 FLR 518 Para 3

…volvement’ in a child’s life. It does not give guidance to the interpretation of the phrase ‘meaningful relationship’ ”. 132.In Mazorski v Albright (2007) 37 Fam LR 518 Brown J considered ordinary definitions of the term “meaningful” and observed: [26].What these definitions convey is that “meaningful”, when used in the cont…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention