Walsh and Walsh - [2013] FMCAfam 92

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALSH & WALSH

[2013] FMCAfam 92

FAMILY LAW – Parenting – interim proceedings – significant allegations as to violence and abuse – significance of protective considerations – young child aged three – father to have supervised time.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Marvel [2010] FamCA 101
Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Applicant:

MS WALSH

Respondent:

MR WALSH

File Number:

WOC 988 of 2012

Judgment of:

Foster FM

Hearing date:

8 January 2013

Date of Last Submission:

8 January 2013

Delivered at:

Sydney

Delivered on:

10 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Cooke

Solicitors for the Applicant:

Legal Solutions

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Hansons Lawyers

ORDERS

All previous parenting orders be discharged.
Pending further order the child [X] born [in] 2009 live with the Mother.
Each party must:
(a)contact the Catholic Care Contact Centre [C] (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the child spend with the Father;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 7 days notice.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the Father is to have contact with the child each fortnight for two hours and such contact is to occur at the Contact Centre.
The Mother or some other person nominated by her must facilitate the delivery the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in this order, then, contact shall occur at the times that are offered by the Contact Centre.
The time the children spend with the Father under this order is to be supervised by the Contact Centre and the Father must pay the reasonable fees for the supervision on each occasion of supervision.
The Father must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and…

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 Walsh and Walsh

Details

AGLC: Walsh and Walsh [2013] FMCAfam 92
Case: [2013] FMCAfam 92
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court of Australia presided over by Foster FM heard interim parenting proceedings brought by the applicant mother, Ms Walsh, against the respondent father, Mr Walsh, in relation to the child [X] born in 2009. The mother sought sole parental responsibility for the child, that the child live with her, and that the child spend time with the father under supervision. The father sought joint parental responsibility, that the child live with the mother, and that he have unsupervised time with the child. The mother alleged that the father had been physically and psychologically abusive towards her and the child throughout their relationship and that he may have been using steroids. The father denied the allegations.

The Court found that there were reasonable grounds to believe the father was engaged in abuse or family violence and that it was not appropriate for the presumption of equal shared parental responsibility to apply. The Court considered the best interests of the child under s 60CC of the Family Law Act 1975. The Court found that the child had a strong attachment with the mother, the child's relationship with the father was problematic, and there were concerns about the father's capacity to provide for the child's needs. The Court made orders that the child live with the mother, that the father have supervised time with the child at the Catholic Care Contact Centre, and that an Independent Children's Lawyer be appointed.

The Court's reasoning focused on protecting the child from potential harm by the father. The Court found the mother's allegations of abuse and the evidence supporting those allegations to be compelling. The Court was concerned that the child's relationship with the father was overshadowed by the father's abusive and controlling behaviour. The Court concluded that supervised contact was necessary to protect the child while still allowing the father some connection with the child.

Orders