VIETH & VIETH - [2019] FamCA 453

FAMILY COURT OF AUSTRALIA

VIETH & VIETH

[2019] FamCA 453

FAMILY LAW – CHILDREN – Child related proceedings – undefended hearing – best interests of the child – need to protect the child from harm – where the mother seeks orders that the child live with her and have no contact with the father – where the Independent Children’s Lawyer seeks orders that the child live with the mother, have no contact with the father and the mother continue to receive ongoing support – where the father is incarcerated and has not participated in the proceedings – where the father has been notified of the proceedings – where the father is convicted and currently servicing a term of imprisonment for maintaining a sexual relationship with a young person – presumption of equal shared parental responsibility not applied – where there is a need to balance the issues of risk and the prospect of the child having a meaningful relationship with each parent – where it is found no such benefit to the child to have a meaningful relationship with the father – where it is found that there is an unacceptable risk in the child spending time with the father – where there are allegations of family violence – orders made in accordance with those sought by the Independent Children’s Lawyer and the mother for the children to live with the mother and spend no time or communicate with the father and mother to receive ongoing counselling support.

Family Law Act 1975 (Cth) s 60CC

Blinko & Blinko [2015] FamCAFC 146
Sirola & Sirola and Anor (No.3) [2016] FamCA 1076
Stott & Holgar and Anor [2017] FamCAFC 152
Wilde & Foster [2018] FamCA 502

APPLICANT:

Ms Vieth

RESPONDENT:

Mr Vieth

INDEPENDENT CHILDREN’S LAWYER:

Tierney Law

FILE NUMBER:

HBC

181

2019

DATE DELIVERED:

4 July 2019

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

4 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Edmondson

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Powe

Orders

THE COURT MAKES THE FOLLOWING PROCEDURAL ORDER:

In circumstances where the father has not filed any response or any documentation in response to the mother’s Application in this matter and where the father has failed to appear in proceedings in the matter, in particular on 28 March 2018 before the Registrar, and, in circumstances where I am satisfied the solicitor for the mother and the ICL have made attempts to contact the father, I make orders that the matter proceed on an undefended basis.

IN ADDITION, THE COURT ORDERS THAT:

Ms Vieth (“the mother”), have sole parental responsibility of X (“the child), born … 2011.
The child live with the mother.
The child shall spend no time with and not communicate with the Mr Vieth (“the father”).
The mother do all reasonable acts and things to comply with the recommendations of her treating medical practitioners in relation to the treatment of her mental health…

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 VIETH & VIETH

Details

AGLC: VIETH & VIETH [2019] FamCA 453
Case: [2019] FamCA 453
Decision Date: 4 July 2019

CaseChat Overview and Summary

In the matter of *Vieth & Vieth*, heard by McClelland DCJ, the proceedings concerned applications relating to the child X, born in 2011. The mother sought orders for the child to live with her and have no contact with the father. The Independent Children’s Lawyer (ICL) supported these orders and also sought ongoing support for the mother. The father, who was incarcerated and serving a sentence for maintaining a sexual relationship with a young person, did not participate in the proceedings despite being notified.

The court was required to determine whether to proceed on an undefended basis, given the father's non-participation. It also had to consider the paramountcy of the child's best interests, the need to protect the child from harm, and whether the presumption of equal shared parental responsibility applied. The court needed to balance the potential benefit of a meaningful relationship with each parent against the risks of harm to the child, particularly in light of allegations of family violence and the father's criminal conviction.

McClelland DCJ reasoned that the father's incarceration and conviction for serious sexual abuse rendered the presumption of equal shared parental responsibility inapplicable. The court found that there was an unacceptable risk of harm to the child if any time was spent with the father, and that no benefit would accrue to the child from a meaningful relationship with him. The court was satisfied that attempts had been made to contact the father and that he had been notified of the proceedings, allowing the matter to proceed undefended. The court applied the principles of protecting children from harm and prioritising their best interests in making its orders.

Consequently, the court made orders that the mother have sole parental responsibility for the child, that the child live with the mother, and that the child spend no time with and not communicate with the father. The mother was also ordered to comply with recommendations regarding her mental health treatment and to engage with counselling services for herself and the child, particularly in light of alleged family violence and the child's lack of protective behaviours. The mother was also required to enrol in a parenting separation program.

Orders

Orders of the court

THE COURT MAKES THE FOLLOWING PROCEDURAL ORDER:

In circumstances where the father has not filed any response or any documentation in response to the mother’s Application in this matter and where the father has failed to appear in proceedings in the matter, in particular on 28 March 2018 before the Registrar, and, in circumstances where I am satisfied the solicitor for the mother and the ICL have made attempts to contact the father, I make orders that the matter proceed on an undefended basis.

IN ADDITION, THE COURT ORDERS THAT:

Ms Vieth (“the mother”), have sole parental responsibility of X (“the child), born … 2011.

The child live with the mother.

The child shall spend no time with and not communicate with the Mr Vieth (“the father”).

The mother do all reasonable acts and things to comply with the recommendations of her treating medical practitioners in relation to the treatment of her mental health conditions.

The mother, within 28 days of this Order, enrol with and attend upon the D Service. The mother is to do all reasonable acts and things to comply with any counselling program/s recommended by the D Service for the mother and/or the child and to accept and comply with any recommendation of the referral by Relationships Australia for the mother and/or child.

That upon attending the D Service, the mother have leave to and will provide a copy of the Orders herein to the D Service and seek assistance for herself and/or the child given the following:

(a) The mother alleges she has been the victim of significant family violence perpetrated upon her the father;

(b) That the father has been sentenced to a term of imprisonment of 12 years for the protracted sexual abuse of another of his children from a former relationship while that child was between the ages of six and 15;

(c) That the child who is the subject of the proceedings I am hearing today has not received any specialised service or counselling to develop and enhance protective behaviours; and

(d) That the child been present in a household where the mother alleges she has been the victim of significant family violence including sexual violence to both the child’s mother and the child’s sibling over a significant period;

That the mother within 28 days of the Order enrol in and commence a parenting separation program.

That the appointment of the Independent Children’s Lawyer continue for a period of 28 days from this Order and during this period the mother cause the child to attend an appointment with the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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