Staker and Temay - [2013] FMCAfam 190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STAKER & TEMAY

[2013] FMCAfam 190

FAMILY LAW – Best interests of the children – meaningful relationship – proposed Consent Orders refused to be made by the Court – male respondent seeks time with 8 and 6 year old male children – 6 year old has very significant disabilities – respondent previously sexually assaulted young girls in 1996, 2001 and 2009 – on Sex Offender’s Register for life – no face to face time with ordered in all circumstances.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC

McCall & Clark (2009) FLC 93-405
Richards & Brown [2011] FamCA 662
Slater & Light [2013] FamCAFC 4
Vigano & Desmond [2012] FamCAFC 79

Applicant:

MS STAKER

Respondent:

MR TEMAY

File Number:

MLC 10698 of 2009

Judgment of:

Curtain FM

Hearing dates:

20 June, 2012;
21 June, 2012;

12 July, 2012;
20 August, 2012;
21 August, 2012;
22 August, 2012; and

Date of Last Submission:

23 August, 2012

Delivered at:

Melbourne

Delivered on:

15 March, 2013

REPRESENTATION

Counsel for the Applicant:

Mr Dunlop

Solicitors for the Applicant:

Duane Portway Family Law

Counsel for the Respondent:

Mr Trim

Solicitors for the Respondent:

Perisic & Thomas Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Eidelson

Independent Children’s Lawyer:

Cathleen Corridon & Associates

ORDERS

THE COURT ORDERS BY CONSENT THAT:

All prior parenting Orders be discharged.
The mother have sole parental responsibility for the children [X] born [in] 2004 (“[X]) and [Y] (also known as [Y]) born [in] 2006 (“[Y]”), (collectively “the children”).
The children live with the mother.

THE COURT ORDERS THAT:

The children not spend any time with MR TEMAY, the respondent.
The children communicate with MR TEMAY, the respondent through cards and letters, sent no more frequently than once per month by the respondent as well as on special days including birthdays and Christmas.
The mother and MR TEMAY, the respondent keep the other advised of their respective mailing addresses and any changes thereto.
In the event that the children or either of them chose to correspond with MR TEMAY, the respondent, then the mother shall facilitate same to an address provided by the respondent.
MR TEMAY, the respondent be at liberty to receive through the mother, a copy of any material, produced by the children’s school or schools for release to parents, including school photos at the expense of the respondent, concerning the children’s academic and social progress. The mother shall be at liberty to anonymise the name, address and any other clear identifying material that relates to the school or schools.
The mother’s solicitors serve or cause to be served upon [X]’s biological father, MR Y a sealed copy of these Orders and he be at liberty to apply within twenty-eight (28) days of service to have these Orders varied or set aside.
Otherwise all applications and responses be dismissed.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an…

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 Staker and Temay

Details

AGLC: Staker and Temay [2013] FMCAfam 190
Case: [2013] FMCAfam 190
Decision Date

CaseChat Overview and Summary

This case concerns a father’s application for time with his two sons. The father has a history of sexual offending against young girls and has served two prison sentences for these offences. The older son has a relationship with his father, while the younger son has significant developmental issues and does not remember his father. The court was not satisfied that the father had confronted his past behaviour, minimised his offending and did not take full responsibility for his actions. There were also concerns about the father’s emotional control and the ability of potential supervisors. The court ordered that the father should not have any contact with the children at this stage. The court also ordered that the children could communicate with the father through cards and letters sent no more frequently than once per month and on special occasions.

Orders