STROUD & REES - [2014] FamCA 754

FAMILY COURT OF AUSTRALIA

STROUD & REES

[2014] FamCA 754

FAMILY LAW – CHILDREN – Sexual abuse allegations made against father consistently denied – No corroboration – Serious concern expressed about mother’s actions – Question of which parent can provide better stability and security – No unacceptable risk with the father but serious concerns about the mother – Difficulty of separating the child from half-siblings – Best interests to change child’s residence.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

A v A (1998) FLC 92-800
B v B (Access) (1986) FLC 91-758
Chappell and Chappell [2008] Fam CAFC 143
Donaghey & Donaghey [2011] FamCA 13
Jones v Dunkel (1959) 101 CLR 298
Fitzpatrick & Fitzpatrick (2005) FLC 93-227; (2005) FLC 93-227
Hardie & Capris [2010] FamCA 1046
Leveque v Leveque (1983) 54 BCLR 164
M v M (1998) 166 CLR 69
Marriage of M (1987) 11 Fam LR 765,
Moose and Moose [2008] FamCAFC 108
Rice and Asplund (1979) FLC 90-725

Australian Journal of Family Law (2006) 20, 249

APPLICANT:

Mr Stroud

RESPONDENT:

Ms Rees

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11270

2011

DATE DELIVERED:

11 September 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

26, 27, 28 & 29 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Testart

SOLICITOR FOR THE APPLICANT:

The Law Office

COUNSEL FOR THE RESPONDENT:

Mr Lowy

SOLICITOR FOR THE RESPONDENT:

Sofra Solicitors Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park

Orders

That all extant parenting orders are discharged.
That the father have sole parental responsibility for the child Z (“the child”) born … 2009.
That prior to making major long-term decisions concerning the child, the father shall notify the mother of his proposal and give her 14 days (unless it is otherwise impossible to do so) to consider his views and within 7 days thereafter, the mother reply by the same electronic means indicating her views whereupon the father shall make the determination and advise the mother accordingly.
That the child live with the father as and from 6.00pm on Friday 12 September 2014.
That the child spend time with and communicate with the mother as follows:
(a)During each alternate weekend from 5.00pm on Friday until 9.00am on the following Monday or such other times as the parties agree commencing on 19 September 2014;
(b)Once the child commences primary school, for the first half of the school term and long summer holidays in even numbered years and the second half of the term and long summer holidays in odd numbered years;
(c)On Mother’s Day from 5.00pm on the Saturday evening prior to Mother’s Day until the start of school on the Monday following Mother’s Day;
(d)From 4.00pm on Christmas Eve until 4.00pm on Christmas Day in even numbered years and from 4.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years commencing with the Christmas Eve in 2014;
(e)By telephone on Tuesdays…

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 STROUD & REES

Details

AGLC: STROUD & REES [2014] FamCA 754
Case: [2014] FamCA 754
Decision Date: 11 September 2014

CaseChat Overview and Summary

The case of Stroud & Rees involved a dispute between a father and mother concerning parenting orders for their child, Z, born in 2009. The matter came before Cronin J.

The court was required to determine the primary caregiver for the child, the extent of parental responsibility each parent would have, and the specific arrangements for the child's living arrangements, time spent with each parent, and communication. Additionally, the court needed to address the ongoing medical care of the child and the obligations of each parent regarding information sharing and the conduct of the parties in relation to the child and the proceedings.

Cronin J ordered that all existing parenting orders be discharged and that the father have sole parental responsibility for the child. The father was directed to notify the mother of his proposals for major long-term decisions, allowing her a period to consider and respond before he made the final determination. The child was ordered to live with the father, with specific provisions for the child to spend time with and communicate with the mother, including alternate weekends, halves of school terms and holidays, and specific public holidays. The court also made orders regarding the collection and handover of the child, the continuation of existing medical care, and the requirement for each parent to keep the other informed of relevant details. Furthermore, injunctions were imposed on both parties, restraining them from discussing the proceedings with the child, denigrating the other parent, seeking counselling regarding allegations of sexual abuse without consensus, or recording the child's conversations for litigation purposes. The court also noted that particulars of the obligations and consequences of contravening these orders were set out in an attached Fact Sheet, and that the Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all extant parenting orders are discharged.

That the father have sole parental responsibility for the child Z (“the child”) born … 2009.

That prior to making major long-term decisions concerning the child, the father shall notify the mother of his proposal and give her 14 days (unless it is otherwise impossible to do so) to consider his views and within 7 days thereafter, the mother reply by the same electronic means indicating her views whereupon the father shall make the determination and advise the mother accordingly.

That the child live with the father as and from 6.00pm on Friday 12 September 2014.

That the child spend time with and communicate with the mother as follows:

(a) During each alternate weekend from 5.00pm on Friday until 9.00am on the following Monday or such other times as the parties agree commencing on 19 September 2014;

(b) Once the child commences primary school, for the first half of the school term and long summer holidays in even numbered years and the second half of the term and long summer holidays in odd numbered years;

(c) On Mother’s Day from 5.00pm on the Saturday evening prior to Mother’s Day until the start of school on the Monday following Mother’s Day;

(d) From 4.00pm on Christmas Eve until 4.00pm on Christmas Day in even numbered years and from 4.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years commencing with the Christmas Eve in 2014;

(e) By telephone on Tuesdays and Thursdays between 6.00pm and 6.30pm with the mother making the telephone call and the father ensuring that the child is available to take the call;

(f) On the mother’s birthday if not a school day for a period of five hours as may be agreed and in the absence of agreement from noon until 5.00pm.

That the mother’s time with the child be suspended as follows:

(a) From 4.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years and from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in odd numbered years; and

(b) On the weekend of Father’s Day from 5.00pm on the Saturday until the commencement of school on the following Monday morning.

That the mother shall collect the child at the commencement of all contact periods and the father shall collect the child at the conclusion of all such contact periods and the changeover shall occur at the McDonald’s restaurants in Town P and Town B respectively.

For so long and as far as is practicable, the child remain under the care of Dr C or such other general practitioner at the D Medical Practice as may be applicable and Dr E as the paediatrician.

That if the child is in the mother’s care, she nominate a medical clinic in the Town B area for the purposes of any treatment and for that purpose, nominate the medical practice within seven days by writing to the father.

10.

That each party keep the other advised as to:

(a) Their residential and contact details and advise the other parent of any change thereto within 24 hours of such change; and

(b) Any medical emergency affecting the child whilst in their care as soon as practicable.

11.

That each party be restrained by injunction from:

(a) Discussing the proceedings or allegations made in those proceedings with or in the presence of the child;

(b) Denigrating the other in the presence or hearing of the child or allowing anyone else to do likewise;

(c) Attending upon a Centre Against Sexual Assault or similar organisation or treating professional for counselling about the allegations of sexual abuse made in these proceedings without consensus of both parents;

(d) Recording the conversations of the child for any forensic or other litigation purposes.

12.

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.

IT IS CERTIFIED:

13.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

14.

That the Independent Children’s Lawyer be discharged.

15.

That all outstanding proceedings are otherwise dismissed.

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.