FAMILY COURT OF AUSTRALIA
| TAYBOR & ANDERSON (NO. 2) | [2009] FamCA 923 |
| FAMILY LAW – CHILD ABDUCTION - Child taken from Australia - Child brought to Australia - Hague Convention FAMILY LAW – CHILDREN - Child related proceedings - Best interests - With whom a child lives FAMILY LAW – CHILD ABUSE - Allegation of sexual abuse - Psychological abuse - supervised contact |
| Briginshaw (1938) 60 CLR 336 Goode (2006) FLC 93 286 Penfold (1980) FLC 90 008 |
| APPLICANT: | Mr Taybor |
| RESPONDENT: | Ms Anderson |
| INDEPENDENT CHILDREN’S LAWYER: | David Duncombe |
| FILE NUMBER: | PAC | 5282 | of | 2008 |
| DATE DELIVERED: | 4 September 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 31 August 2009 - 3 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR GERSBACH |
| SOLICITOR FOR THE APPLICANT: | HERMANN & GREEN |
| COUNSEL FOR THE RESPONDENT: | MR MAURICE |
| SOLICITOR FOR THE RESPONDENT: | HAMISH CUMMINGS FAMILY LAWYER |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | MS DRUITT |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | DIGNAN & HANRAHAN DX 5113 CAMPBELLTOWN |
Orders
That all prior parenting orders in respect of the child … born … February 2005 be and are hereby discharged.
That the child hereafter be known by the name … Anderson-Taybor.
That the mother and father each do all things and sign all documents necessary to record the child by the name … Anderson-Taybor and to record Mr Taybor, born … 1958, as the child’s father with the NSW Registry of Births Deaths and Marriage.
That the father have sole parental responsibility for the subject child. The father shall consult with the mother as to significant issues relating to the child and keep the mother informed and advised as to the child’s health, education and welfare.
That the child shall live with the father.
That the Mother and her servants and agents be and are hereby restrained from removing or causing or allowing the Child to be removed from the Commonwealth of Australia and from applying for a passport for the Child in any jurisdiction.
That the Marshall and all officers of the Australian Federal Police and Police Forces of the States and Territories are requested and authorised to give effect to these orders.
That the Australian Federal Police place the name of the Child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch until further order of the Court for the purpose of preventing the removal of the Child from Australia in breach of these Orders.
That the Registry Manager of the Parramatta Registry of this Court deliver to the father the following items:
(a) Australian Passport … issued to the child; and
(b) Country B passport … issued to the child.
That the Registry Manager of the Parramatta Registry of this Court deliver to the mother the following items:
(a) Australian Passport …issued to the mother; and
(b) Country B Passport … issued to the mother.
That the mother and father…
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- AGLC
- Taybor and Anderson (No 2) [2009] FamCA 923
- Case
- [2009] FamCA 923
- Decision Date
CaseChat Overview and Summary
The court was required to determine a range of issues concerning the child's welfare and the parental responsibilities of Mr Taybor and Ms Anderson. These included whether to discharge prior parenting orders, the child's surname, the allocation of sole parental responsibility, the child's residence, and the terms of contact between the child and the mother. The court also had to consider orders preventing the child's removal from Australia, the mother's communication with media and authorities regarding allegations of sexual abuse, and the mother's communication with the child in a language other than English. Further issues involved the return of passports and photographs, the provision of the child's Medicare card and bluebook, and the mother's contact with the child's educational institutions and other parents.
Collier J discharged all prior parenting orders and ordered that the child be known by the surname Anderson-Taybor. The father was granted sole parental responsibility, with the child to live with him. The mother was significantly restrained from removing the child from Australia and from applying for a passport for the child. The court imposed strict conditions on the mother's contact with the child, initially requiring supervised contact at a contact centre, with unsupervised contact only permitted from the age of eleven. The mother was also restrained from discussing the child or father with journalists, making complaints of sexual abuse without notifying the Independent Children's Lawyer or the court, and speaking to the child in a language other than English, except for greetings or endearments. The father was given liberty to suspend the mother's contact for specified periods, and the mother was restrained from attending or communicating with the child's childcare, preschool, or school. The court also ordered the return of the child's passports to the father and the mother's passports to the mother, and the mother was to provide photographs and the child's bluebook to the father. The appointment of the Independent Children's Lawyer was extended for twelve months.
Orders
Orders of the court
1.
That all prior parenting orders in respect of the child … born … February 2005 be and are hereby discharged.
2.
That the child hereafter be known by the name … Anderson-Taybor.
3.
That the mother and father each do all things and sign all documents necessary to record the child by the name … Anderson-Taybor and to record Mr Taybor, born … 1958, as the child’s father with the NSW Registry of Births Deaths and Marriage.
4.
That the father have sole parental responsibility for the subject child. The father shall consult with the mother as to significant issues relating to the child and keep the mother informed and advised as to the child’s health, education and welfare.
5.
That the child shall live with the father.
6.
That the Mother and her servants and agents be and are hereby restrained from removing or causing or allowing the Child to be removed from the Commonwealth of Australia and from applying for a passport for the Child in any jurisdiction.
7.
That the Marshall and all officers of the Australian Federal Police and Police Forces of the States and Territories are requested and authorised to give effect to these orders.
8.
That the Australian Federal Police place the name of the Child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch until further order of the Court for the purpose of preventing the removal of the Child from Australia in breach of these Orders.
9.
That the Registry Manager of the Parramatta Registry of this Court deliver to the father the following items:
(a) Australian Passport … issued to the child; and
(b) Country B passport … issued to the child.
10.
That the Registry Manager of the Parramatta Registry of this Court deliver to the mother the following items:
(a) Australian Passport …issued to the mother; and
(b) Country B Passport … issued to the mother.
11.
That the mother and father each keep the other informed of their full residential address, current telephone numbers both landline and mobile, and any email address at which they may be contacted.
12.
That each party shall give the other at least seven days notice in advance of any proposed change to their residential address.
13.
That the Mother be and is hereby restrained from:
(a) disclosing or discussing with any journalist or reporter;
(b) encouraging, authorising or allowing any other person to discuss with or disclose to any journalist or reporter; or
(c) in any other way causing or allowing to be published, including publication on the internet or any website:
any information that names or refers to the Child or the Father, except as required by law.
14.
That the mother be and is hereby restrained from making any complaint of sexual abuse regarding the subject child to any person, authority, police service or government agency without:
(a) First notifying the Independent Children’s Lawyer of her intention to do so; and
(b) In the event that no Independent Children’s Lawyer is in place, any such complaint is to be brought to this Court by the mother filing an application for relief and appropriate supporting material.
15.
That the appointment of the Independent Children’s Lawyer be extended for a period of twelve months from this date.
16.
That the child shall spend supervised time with the mother as follows:
(a) From the date of these Orders until the child commences school on two occasions each week for such periods as may be available at the P Contact Centre or any other centre that may appropriately facilitate the child spending supervised time with the mother.
(b) From the time the child commences school until the child attains the age of eight years, as follows:
(i) Each Saturday for such period of time as may be available at the Contact Centre;
(ii) After school each Wednesday, or such other appropriate weekday afternoon, for such period of supervised time as may be available at the Contact Centre.
(c) From the time the child attains the age of eight years until the child attains the age of eleven years, each Saturday for such time as can be made available by the Contact Centre.
(d) That the mother and father equally share and be responsible for all fees, costs and charges of any contact centre.
(e) That in the event of there being no contact centre service available, such time in accordance with these orders is to be supervised by a member of the father’s extended family as nominated by the father. In the event of any difficulty with the identity or appointment of a supervisor in accordance with this order, the matter may be restored to the list upon giving seventy-two hours notice.
17.
That as and from the time the child attains the age of eleven years, the mother shall spend unsupervised time with the child each alternate weekend form after school Friday to before school Monday.
18.
That the Father facilitate the Child speaking with the Mother by telephone on 2 occasions each week, being on days when the Child does not spend time with the Mother, to be effected by the Mother placing a call to the Father on a landline telephone number, if available, and the Father keeping the Mother informed of the telephone numbers on which the Child can be contacted.
19.
That the mother otherwise communicate with the father by email or text message and not by telephone except in the case of an emergency.
20.
That until the child attains the age of eleven years, the mother is restrained from speaking to the child in the language of Country B other than by way of greeting or endearment and shall use English in all conversations. Further the mother is not to whisper to the child so as to avoid being heard by persons supervising.
21.
That the mother and the father each be and are hereby restrained from denigrating the other or any member of the other’s extended family in the presence or hearing of the Child.
22.
That the father be at liberty to suspend the mother’s time with the child either for one period of up to four weeks in each year or for two periods of up to two weeks in each year, upon giving the mother at least twenty-eight days written notice.
23.
That the mother is restrained from attending or communicating by any means with any childcare, preschool or school attended by the child or with parents or carers of any other child attending the same institution, either directly or via another party.
24.
That the mother is to deliver to the father within twenty-eight days from the date of these Orders all photographs and videos removed from the parties’ home in July 2008. The father is to take such copies as he wishes, at his own expense, and return that material to the mother within fourteen days thereafter.
25.
That the mother make available to the father within fourteen days the Medicare card in respect of the child and the child’s bluebook. The mother may make copies of the bluebook before making it available to the father.
26.
That the Independent Children’s Lawyer’s application for costs be and is hereby dismissed.
27.
That all outstanding applications and cross applications be and are hereby dismissed.
28.
That all issues be removed from the Active Pending Cases List.
29.
That all material produced on subpoena be returned not before fifty-six days from this date.
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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