FAMILY COURT OF AUSTRALIA
| STAPLETON & HAYES | [2009] FamCA 437 |
| FAMILY LAW – CHILDREN – Parenting proceedings – sexual abuse allegations – standard of proof – investigations by JIRT and DOCS – consideration of children’s statements, adult influence, medical evidence, professional opinion, anti social traits - issue of mother’s mental health – risk of psychological and emotional harm – children to live with their father – s 65L order |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| M v M (1988) 166 CLR 69 W v W (Abuse allegations: unacceptable risk) (2006) FLR 129 Briginshaw v Briginshaw (1938) 60 CLR 336 Taylor-Black & Vasser (2008) FamCA 335 Re B (Children) [2008] UKHL 35 Director General of Department of Community Services; re Sophie [2008] NSWCA 250 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Palmer v Dolman [2005] NSWCA 361 |
| APPLICANT: | Ms Stapleton |
| RESPONDENT: | Mr Hayes |
| INTERVENOR: | Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYC | 2750 | of | 2007 |
| DATE DELIVERED: | 25 May 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 18 September 2007, 16, 24 April, 14 May, 29 September, 9, 10, 13, 14, 15 October, 20, 21, 24, 25 November 2008 & 18 February 2009 |
| WRITTEN SUBMISSIONS: | 5, 12 December 2008, 9, 16 January 2009 & 11 March 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Druitt |
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg |
| THE RESPONDENT FATHER: | In person |
| COUNSEL FOR THE INTERVENOR: | Mr Hoy SC |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
All previous parenting orders are discharged.
The father is to have sole parental responsibility for the children N born … July 2000 and E born … September 2001.
The children are to live with their father.
Not earlier than one month after the making of these orders the children are to spend time with their mother supervised at the H Contact Service or other agreed supervised setting if that service is not available for any reason for three consecutive months on two consecutive days in each month and for a minimum of two hours each day at dates and times provided by H Contact Service or other agreed supervisor.
Upon the completion of the three month period referred to in 4 the children spend time with the mother as follows:
(A) during school terms:
(a)for two weekends each term [the 2nd and 8th unless otherwise agreed in the H area, the mother or her nominee to collect the children from school on Friday at the commencement of the period and to return them to school on Monday at the conclusion of the period;
(b)for one weekend [the 5th unless otherwise agreed] in the Sydney Metropolitan area, the mother or her nominee to collect the children from the father or his nominee at 9am Saturday from Central Railway Station and the mother…
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- AGLC
- Stapleton and Hayes [2009] FamCA 437
- Case
- [2009] FamCA 437
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were how to best provide for the children's welfare and development, particularly in light of allegations of sexual abuse. This involved determining the appropriate allocation of parental responsibility, establishing a detailed schedule for the children to spend time with both parents, and implementing measures to safeguard the children and ensure appropriate communication and decision-making between the parents. The court also considered the role of external agencies, such as the Department of Community Services and the Independent Children's Lawyer, in the implementation and oversight of any orders made.
Justice Moore's reasoning focused on the paramountcy of the children's best interests. The court discharged all previous parenting orders and made significant orders granting the father sole parental responsibility and designating him as the primary caregiver. The mother was to have supervised time with the children initially, with a phased transition to less supervised and more extensive time, including specific arrangements for weekends and school holidays. Crucially, the mother was restrained from presenting the children for psychiatric, psychological, or medical consultations related to allegations of sexual abuse without the consent of both parents or the permission of the Department of Community Services. The court also mandated communication protocols between the parents and outlined the father's obligations to keep the mother informed of significant decisions regarding the children's schooling, medical treatment, and upbringing. The court further appointed a Family Consultant to assist with the implementation of the orders and to report to the court as necessary.
Orders
Orders of the court
1.
All previous parenting orders are discharged.
2.
The father is to have sole parental responsibility for the children N born … July 2000 and E born … September 2001.
3.
The children are to live with their father.
4.
Not earlier than one month after the making of these orders the children are to spend time with their mother supervised at the H Contact Service or other agreed supervised setting if that service is not available for any reason for three consecutive months on two consecutive days in each month and for a minimum of two hours each day at dates and times provided by H Contact Service or other agreed supervisor.
5.
Upon the completion of the three month period referred to in 4 the children spend time with the mother as follows:
(A) during school terms:
(a) for two weekends each term [the 2nd and 8th unless otherwise agreed in the H area, the mother or her nominee to collect the children from school on Friday at the commencement of the period and to return them to school on Monday at the conclusion of the period;
(b) for one weekend [the 5th unless otherwise agreed] in the Sydney Metropolitan area, the mother or her nominee to collect the children from the father or his nominee at 9am Saturday from Central Railway Station and the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday.
(B) during school holidays:
(c) for the holidays at the end of the 1st and 3rd terms from the last day of school to the final Wednesday of those holidays, the mother or her nominee to collect the children from school at the commencement of the period and the father or his nominee to collect them from the G Contact Centre or other agreed venue at the conclusion of the period;
(d) for one half of the holidays at the end of the 2nd term and during the December/January school holiday period, at times to be agreed and failing agreement:
(i) for the first half in years ending in an even number, the mother or her nominee to collect the children from school at the commencement of her time with the children and the father or his nominee to collect the children from the G Contact Centre or other agreed venue at the conclusion of the period;
(ii) for the second half in years ending in an odd number, the mother or her nominee to collect the children from the H Contact Centre or other agreed venue at the commencement of the period and the father or his nominee to collect the children from the G Contact Centre or other agreed venue at the conclusion of the period;
(C) at other times:
(e) if the mother is in the H area and not otherwise spending time with the children according to these orders, for three hours with both children on each of the children’s birthday(s) at times agreed and failing agreement from after school until 7pm if it falls on a school day and from 3pm to 7pm if not on a school day;
(f) at other times agreed between the parents in writing.
6.
The father is to facilitate the children communicating with their mother while in his care by telephone each Tuesday and Thursday at about 6pm by assisting the children to call their mother at that time.
7.
The mother is to facilitate the children communicating with their father while in her care by telephone each Tuesday and Thursday at about 6pm by assisting the children to call their father at that time.
8.
The mother is restrained and an injunction is hereby granted restraining her from presenting either of the children for any psychiatric or psychological consultation or for any medical examination in furtherance of an allegation of sexual abuse or from presenting either of the children for counseling related to any allegation of sexual abuse without the written consent of both parents or failing that the written permission of the New South Wales Department of Community Services.
9.
The father is to
(i) forthwith advise the mother in writing of the name of the school at which he enrolls the children at any time and the mother will be entitled to obtain directly from the school copies of all reports related to the children’s progress and any newsletters or other material provided by the school to all parents; and
(ii) keep the mother informed of any non-routine medical treatment sought for the children and provide at the same time the name and contact details of the treating medical practitioner; and
(iii) keep the mother informed of any other major decisions taken in relation to the children’s upbringing.
10.
The ICL is at liberty to provide to the school a copy of these orders.
11.
If further allegations of sexual abuse of the children should arise in the future, either parent or the New South Wales Department of Community Services as a party to these proceedings is authorized to provide a copy of these orders and the Reasons for Judgment delivered 25 May 2009 to the New South Wales Police or any other authority responsible for investigating the allegations.
12.
The Director-General of the Department of Community Services is to ensure that a copy of these orders and these Reasons for Judgment are placed on the file maintained by the Department and to ensure the existence and availability of these documents are recorded on any database referable to the children.
13.
Pursuant to Section 65L of the Family Law Act 1975, a Family Consultant nominated by the Director, Child Dispute Resolution Services of the Family Court Sydney Registry is appointed to report if so requested by the Court and with the implementation of these orders as necessary, including but not limited to:
(i) facilitating the changeover of the care of the children’s care to their father;
(ii) in consultation with the Independent Children’s Lawyer advising the children of the orders;
(iii) making recommendations to the father for any appropriate referral for counseling of the children as may be required for the transition to his care.
14.
The Director-General is requested to facilitate the implementation of these orders as may be necessary.
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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