Taylor-Black and Vasser - [2008] FamCA 335

FAMILY COURT OF AUSTRALIA

TAYLOR-BLACK & VASSER

[2008] FamCA 335

FAMILY LAW – CHILDREN – With whom a child lives – sexual abuse allegations – best interests of child

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

APPLICANT:

Mr Taylor-Black

RESPONDENT:

Ms Vasser

INDEPENDENT CHILDREN’S LAWYER:

Ms Eva Karagiannis

FILE NUMBER:

SYC

200

2007

DATE DELIVERED:

15 May 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 – 30 April 2008;
4 – 7 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hausman

SOLICITOR FOR THE APPLICANT:

Ross A. Clarke & Associates

SOLICITOR FOR THE RESPONDENT:

Mother in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

All previous orders herein be and are hereby discharged.
The father have sole parental responsibility for the child of the relationship … born … April 2001 (hereinafter referred to as “[the child]”).
The child live with the father.
Commencing on Saturday 9 August 2008, the child spend time with the mother as follows:-
4.1.on alternate weekends from 9.00am on Saturday until 6.00pm on Sundays; the mother to collect the child from the father on the Saturday, the father to collect the child from the mother on the Sunday;
4.2.on the weekend of Orthodox Easter at the times specified in paragraph 4.1 herein;
4.3.on occasions of the child’s and the mother’s birthday each year; in the event that the birthday falls on a school day, for a period of 3 hours after school; in the event that the birthday falls on a weekend when the child is not otherwise with the mother, for one day on that weekend;
4.4.in each even numbered year between 10.00am Christmas Eve and 10.00am Christmas Day and in each odd numbered year between 10.00am Christmas Day and 10.00am Boxing Day; ;
4.5.on Mother’s Day each year from 9.00am until the commencement of school the following day;
4.6.at other times as may be agreed in writing between the parties.
The Applicant Father be at liberty to suspend the time periods the Mother is entitled to have with the child, on two (2) occasions per year (although not on consecutive time periods pursuant to these orders), to be nominated by the Applicant Father, to enable the Applicant Father to take the child away during school holiday periods, conditional upon him advising the Respondent Mother not less than two (2) calendar months in advance of his intention to do so.
The Respondent Mother shall be entitled to make up weekends as nominated by the mother, in the event that the Applicant Father elects to suspend the child’s time with her mother pursuant to order 5.
The provisions of paragraph 4.1 are suspended on Father’s Day each year and on those occasions the mother’s time shall take place on the following weekend.
The mother shall ensure that the child sleeps in her own bed whenever the child spends time with her on an overnight basis.
The parties facilitate the child’s attendance…

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 Taylor-Black and Vasser

Details

AGLC: Taylor-Black and Vasser [2008] FamCA 335
Case: [2008] FamCA 335
Decision Date: 15 May 2008

CaseChat Overview and Summary

In the matter of *Taylor-Black and Vasser*, Watts J of the Family Court of Australia made orders concerning the parental responsibility and time spent with the child of the relationship. The dispute involved the father seeking sole parental responsibility and orders for the child to live with him, alongside specific arrangements for the child's time with the mother.

The court was required to determine the most appropriate orders for the child's welfare, specifically regarding parental responsibility, living arrangements, and the nature and extent of the child's time with each parent. This included considering the mother's access to the child, communication, and her involvement in the child's schooling and medical care, as well as provisions to prevent the child's international travel without consent.

Watts J ordered that the father have sole parental responsibility for the child and that the child live with the father. The court then detailed a comprehensive schedule for the child's time with the mother, including alternate weekends, specific holidays, birthdays, and Mother's Day. Further orders imposed restrictions on the mother's ability to present the child to certain professionals without consent, limited her attendance at the child's school, and regulated communication between the mother and child. The father was granted the liberty to suspend the mother's time with the child on two occasions annually, with provisions for the mother to make up this time. The court also made orders regarding the child's travel, passport applications, and the notification of emergencies, and requested the Australian Federal Police place the child on the Airport Watch List. The Independent Children's Lawyer's application for costs against the father was dismissed.

Orders

Orders of the court

All previous orders herein be and are hereby discharged.

The father have sole parental responsibility for the child of the relationship … born … April 2001 (hereinafter referred to as “[the child]”).

The child live with the father.

Commencing on Saturday 9 August 2008, the child spend time with the mother as follows:-

4.1. on alternate weekends from 9.00am on Saturday until 6.00pm on Sundays; the mother to collect the child from the father on the Saturday, the father to collect the child from the mother on the Sunday;

4.2. on the weekend of Orthodox Easter at the times specified in paragraph 4.1 herein;

4.3. on occasions of the child’s and the mother’s birthday each year; in the event that the birthday falls on a school day, for a period of 3 hours after school; in the event that the birthday falls on a weekend when the child is not otherwise with the mother, for one day on that weekend;

4.4. in each even numbered year between 10.00am Christmas Eve and 10.00am Christmas Day and in each odd numbered year between 10.00am Christmas Day and 10.00am Boxing Day; ;

4.5. on Mother’s Day each year from 9.00am until the commencement of school the following day;

4.6. at other times as may be agreed in writing between the parties.

The Applicant Father be at liberty to suspend the time periods the Mother is entitled to have with the child, on two (2) occasions per year (although not on consecutive time periods pursuant to these orders), to be nominated by the Applicant Father, to enable the Applicant Father to take the child away during school holiday periods, conditional upon him advising the Respondent Mother not less than two (2) calendar months in advance of his intention to do so.

The Respondent Mother shall be entitled to make up weekends as nominated by the mother, in the event that the Applicant Father elects to suspend the child’s time with her mother pursuant to order 5.

The provisions of paragraph 4.1 are suspended on Father’s Day each year and on those occasions the mother’s time shall take place on the following weekend.

The mother shall ensure that the child sleeps in her own bed whenever the child spends time with her on an overnight basis.

The parties facilitate the child’s attendance upon any counsellor or therapist as may be nominated by the Independent Children's Lawyer including attending personally upon that therapist if so requested and for that purpose the Independent Children's Lawyer may provide to the counsellor or therapist a copy of Dr M’s report and a copy of my Reasons for Judgment.

10.

The mother is otherwise restrained from presenting the child to any medical practitioner, therapist, counsellor, psychologist, DoCS caseworker, police officer or any social worker other than in the case of a genuine emergency.

11.

The mother shall be at liberty to attend any major sporting event where parents ordinarily attend (this is not to include, without the father’s consent, such things as the child’s sporting lessons whilst she is living with her father).

12.

The Respondent Mother is restrained from attending D school or any other school which the child shall attend, for the purpose of participating in class, or other extra curricular activities such as reading groups, without the written consent of the Applicant Father, and otherwise the Respondent Mother’s attendance shall be limited to school plays, concerts, presentation nights, speech nights, or parent/teacher interviews as arranged with the school from time to time.

13.

The mother shall have telephone communication with the child on two occasions each week, such calls to be made by the mother between the hours of 6.00pm and 7.00pm.

14.

The father shall provide the child with privacy at the time she has any telephone communication with the mother.

15.

Both parties are restrained from recording in any fashion, or allowing third parties to do so on their behalf, conversations with the child.

16.

The Respondent Mother is restrained from videoing or photographing the child, or allowing third parties to do so on her behalf, with the intention, or for the purpose of collecting evidence or information to use in anticipated proceedings or complaints against the Applicant Father.

17.

The Respondent Mother is restrained from questioning the child, or discussing with the child, matters related to the subject of ‘abuse’, including ‘sexual abuse’, in relation to the Applicant Father.

18.

Each party shall notify the other, as soon as practicable, of any medical or other emergency concerning the child.

19.

The father shall forthwith execute the appropriate authority at the child’s school and at any school which the child may attend, to authorise the school to forward to the mother copies of the child’s school reports and any other document ordinarily provided to parents.

20.

The mother be restrained from taking the child outside the Sydney metropolitan area without the written consent of the father or further court order.

21.

The father be restrained from taking the child outside the Commonwealth of Australia without the written consent of the mother or further court order.

22.

The Court requests that until further order the Australian Federal Police place the child’s name on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

23.

Each party is restrained from making application for the issue of a passport for the child without the written consent of the other party or an order of the Court.

24.

Each party shall keep the other party informed of any change to his/her residential address and telephone contact number.

25.

The Independent Children's Lawyer’s application for costs against the father be dismissed.

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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