THORNTON & THORNTON - [2016] FamCA 152

FAMILY COURT OF AUSTRALIA

THORNTON & THORNTON

[2016] FamCA 152

FAMILY LAW – PARENTING ORDERS – Interim – Variation – Where father accused of sexually abusing the children by the mother – Where trial judge determined the children not at an unacceptable risk in the father’s care – Where the Full Court are reserved in judgment following an appeal – Application dismissed.

FAMILY LAW – CHILDREN – Interim – Whether a parent should be permitted to attend the children’s school – Where there is no express entitlement contained within an order or parenting plan for the parent to attend the school – Where the children are not in the parent’s care, supervised or otherwise.

Family Law Act 1975 (Cth) s60CC

Marsden v Winch (2009) 42 Fam LR 1
Reid & Lynch (2010) FLC 93-448
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Thornton

RESPONDENT:

Ms Thornton

INDEPENDENT CHILDREN’S LAWYER:

Nicola Davies

FILE NUMBER:

BRC

8946

2012

DATE DELIVERED:

16 March 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

14 March 2016

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Bunning

SOLICITOR FOR THE RESPONDENT:

Wiltshire Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Davies

Legal Aid Queensland

Orders

The applicant’s Application in a Case filed 2 December 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Thornton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8946 of 2012

Mr Thornton

Applicant

And

Ms Thornton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In October 2012, contested parenting proceedings between the parents in this matter were commenced in the Federal Circuit Court. Allegations were made by the mother that the father had sexually abused the children (two little girls) and the matter was transferred to this Court and placed in the Magellan list of matters. The Federal Circuit Court Judge made some interim parenting orders that provided for the two children to spend independently supervised time with the father, pending the determination of the matter. Unsurprisingly, the amount of time the children got to spend with the father pursuant to such orders was relatively limited. That was, as is invariably the case, attributable to questions of resourcing and cost as opposed to other considerations.
Further applications for various interim orders were heard by the Principal Registrar in this Court and on 2 December 2013 orders were made on those applications that provided for G, then aged 8, and V, then aged 4 (almost 5), to spend time with their father each Sunday from 1:00 pm until 5:00 pm and on one afternoon each week after school from 3:40 pm until 5:00 pm and on one other day in the 2013-2014 school holidays, such time to be supervised by Ms A (a private, commercial provider of supervision services to parents such as these). The father…

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.

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Details

AGLC: THORNTON & THORNTON [2016] FamCA 152
Case: [2016] FamCA 152
Decision Date: 16 March 2016

CaseChat Overview and Summary

In *Thornton & Thornton*, the applicant father sought to vary existing parenting orders to permit him to attend his children's school. The mother alleged the father had sexually abused the children, a claim the trial judge had determined did not place the children at an unacceptable risk in the father's care. The Full Court had reserved its judgment on an appeal concerning these matters.

The central legal issue before Forrest J was whether the father, who was not currently in the children's care (whether supervised or otherwise), should be permitted to attend the children's school, particularly in the absence of any express entitlement in an existing order or parenting plan.

Forrest J dismissed the father's application. The reasoning appears to have been that, in the context of the ongoing appeal to the Full Court and the absence of any current care arrangements or express orders permitting such attendance, the application was not warranted. The court implicitly applied principles concerning the best interests of the child and the need for clear orders governing parental involvement, especially where serious allegations have been made and are subject to appeal.

The applicant's Application in a Case filed 2 December 2015 was dismissed.

Orders

Orders of the court

The applicant’s Application in a Case filed 2 December 2015 is 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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