Thompson and Booker - [2019] FamCA 418

FAMILY COURT OF AUSTRALIA

THOMPSON & BOOKER

[2019] FamCA 418

FAMILY LAW – CHILDREN – Interim parenting orders – where there are allegations that the Father sexually abused the child – where the Father has not seen the child for nearly three years – central issue is whether the Father should spend supervised time with the child prior to the final hearing – whether there is a risk of traumatisation for the child if she spends time with the Father – whether the risk of traumatisation is outweighed by the risk that the child will not have a relationship with the Father if they do not see each other.
EVIDENCE – Opinion offered by a treating expert – limited exposure of reasoning – relevance – admissibility – weight.

Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 65DAA.

Dasreef v Hawchar [2011] HCA 21
Lane v Nichols [2016] FamCAFC 234
Marsden & Winch (No 3) (2007) FamCA 1364
W K Cao & Cao [2018] FLC 93-880.

APPLICANT:

Mr Thompson

RESPONDENT:

Ms Booker

INDEPENDENT CHILDREN’S LAWYER:

Ms J Cruise

FILE NUMBER:

BRC

14778

2018

DATE DELIVERED:

2 July 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

24 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms M Davis

SOLICITOR FOR THE APPLICANT:	Condon Charles Lawyers
COUNSEL FOR THE RESPONDENT:	Ms B Morrisroe

SOLICITOR FOR THE RESPONDENT:

Gordon Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid ACT

Orders

That until further order:

The child Y, born in 2012 live with the Mother.
The Mother have sole parental responsibility for Y.
The Mother provide the Father with the contact details of Y’s school and treating practitioners and give the necessary authority to her school and treating practitioners for the Father to be provided with information about Y.
Y spend time with her Father for two periods of up to four hours per day across a period of up to three days once each six week period on a supervised basis at the H Contact Centre, with the dates and times to be as scheduled by and subject to the availability of the H Contact Centre.
For the purposes of the above Order the Father is to advise the Mother in writing of the nominated dates for the visit at least 3 weeks prior to the visit.
The Father shall be solely responsible for the costs of the H Contact Centre.
The parties are at liberty to vary the arrangements for supervised time by agreement in writing.
Y shall have electronic contact with her Father each Friday for a period occurring between 6.00pm and 7.00pm EST with the Father to initiate the communication by a means nominated by the Mother to him in writing.
In the event that the Father is unable to initiate the contact in the above order by reason of his work roster then, provided he has given the Mother 48 hours notice in writing of his inability, then the electronic contact shall take place…

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 Thompson and Booker

Details

AGLC: Thompson and Booker [2019] FamCA 418
Case: [2019] FamCA 418
Decision Date: 2 July 2019

CaseChat Overview and Summary

In the matter of *Thompson and Booker*, heard before Gill J, the dispute concerned parenting arrangements for a child, Y, born in 2012. The court was tasked with determining the orders regarding Y's residence, parental responsibility, and time spent with each parent.

The central legal issues before the court were to establish where Y would live, who would hold parental responsibility for Y, and the nature and extent of Y's contact with her father. The court also had to consider the practical arrangements for facilitating this contact, including supervision, costs, and communication methods.

Gill J made orders that Y would live with the Mother and that the Mother would have sole parental responsibility. The Father was to be provided with Y's school and treating practitioner contact details, with authority for information to be shared. Y was to spend time with her Father for two periods of up to four hours per day, across up to three days once every six weeks, on a supervised basis at the H Contact Centre. The Father was to be solely responsible for the costs of the contact centre and was required to provide three weeks' written notice of nominated dates. Electronic contact was ordered for Y with her Father each Friday evening, with provisions for alternative contact on the following Saturday if the Father was unable to initiate contact due to his work roster, provided 48 hours' written notice was given. The parties retained liberty to vary supervised time arrangements by written agreement.

Orders

Orders of the court

That until further order:

The child Y, born in 2012 live with the Mother.

The Mother have sole parental responsibility for Y.

The Mother provide the Father with the contact details of Y’s school and treating practitioners and give the necessary authority to her school and treating practitioners for the Father to be provided with information about Y.

Y spend time with her Father for two periods of up to four hours per day across a period of up to three days once each six week period on a supervised basis at the H Contact Centre, with the dates and times to be as scheduled by and subject to the availability of the H Contact Centre.

For the purposes of the above Order the Father is to advise the Mother in writing of the nominated dates for the visit at least 3 weeks prior to the visit.

The Father shall be solely responsible for the costs of the H Contact Centre.

The parties are at liberty to vary the arrangements for supervised time by agreement in writing.

Y shall have electronic contact with her Father each Friday for a period occurring between 6.00pm and 7.00pm EST with the Father to initiate the communication by a means nominated by the Mother to him in writing.

In the event that the Father is unable to initiate the contact in the above order by reason of his work roster then, provided he has given the Mother 48 hours notice in writing of his inability, then the electronic contact shall take place on the following Saturday between 11.00 am and 12pm on the same basis.

10.

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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