WALSH & CULLEN - [2016] FamCA 872

FAMILY COURT OF AUSTRALIA

WALSH & CULLEN

[2016] FamCA 872

FAMILY LAW – CHILDREN – Risks of Harm – Where the mother believes the father poses a risk of harm to the children by sexual abuse – Where the evidence does not support a finding of such a risk – Where the children are not at risk of harm by subjection to physical abuse by the father – Where the children are not at risk of harm through their neglect – Where the children are not at risk of harm through exposure to family violence – Ordered that the children spend time with the father – Ordered that the time the children spend with the father increases gradually, culminating in alternating weekends, half of school holidays, and other special occasions

FAMILY LAW – PARENTING – Best Interests – Where the children enjoy meaningful relationships with both parents – Where the parents agree the children should continue living with the mother – Order that the children live with the mother – Where the alleged risks of harm posed by the father to the children not proven – Orders that the children spend time with the father

FAMILY LAW – PARENTING – Relocation – Where the mother seeks to relocate her residence with the children – Where relocation would curtail the time the children can spend with the father – Where the mother seeks to relocate due to her apprehension of harassment by the paternal family – Where the welfare of the children would not be adversely affected by their proposed relocation – Where the mother submits to an order restraining her relocation to a wider area than that proposed by the father – Ordered that the mother’s relocation is restricted to the area she proposed

FAMILY LAW – EVIDENCE – Interaction of the Family Law Act and the Evidence Act – Where an order is made for provisions of the Evidence Act to apply to the evidence directed to one issue in the proceedings – Where provisions of the Evidence Act can be applied to selected issues in child-related proceedings

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss, 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE, 69ZT

Amador v Amador (2009) 43 Fam LR
AMS v AIF (1999) 199 CLR 160
Johnson v Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
Maluka v Maluka (2011) FLC 93-464
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda [2014] FamCAFC 173

APPLICANT:

Mr Walsh

RESPONDENT:

Ms Cullen

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

FILE NUMBER:

NCC

279

2016

DATE DELIVERED:

13 October 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

26, 27, 28 & 29 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carty

SOLICITOR FOR THE APPLICANT:

McNeilly Lawyers

COUNSEL FOR THE RESPONDENT:

Ms O’Rourke, solicitor advocate

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW, E…

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 & CULLEN

Details

AGLC: WALSH & CULLEN [2016] FamCA 872
Case: [2016] FamCA 872
Decision Date: 13 October 2016

CaseChat Overview and Summary

The case of Walsh & Cullen concerned parenting orders made by Austin J in the Federal Circuit and Family Court of Australia. The dispute involved allegations by the mother that the father posed a risk of sexual abuse to the children, and the mother's desire to relocate with the children. The father sought orders for the children to spend time with him, and for the mother to be restrained from relocating the children beyond a specified area.

The court was required to determine several key issues, including whether the children were at risk of harm from the father, the best interests of the children in relation to their living arrangements and time spent with each parent, and the appropriateness of the mother's proposed relocation. The court also considered the interaction between the *Family Law Act 1975* (Cth) and the *Evidence Act 1995* (Cth) in relation to the admissibility of evidence on specific issues.

Austin J found that the evidence did not support the mother's allegations of sexual abuse, physical abuse, neglect, or exposure to family violence by the father. The court determined that the children enjoyed meaningful relationships with both parents and that their welfare would not be adversely affected by the mother's proposed relocation, provided it was within the parameters she suggested. The court applied the paramount consideration of the children's best interests, weighing the established relationships with both parents against the unsubstantiated risks alleged by the mother. The court also made orders regarding the application of the *Evidence Act* to specific issues in the proceedings.

The court ordered that the children live with the mother and discharged all former orders. The mother was granted sole parental responsibility for major long-term issues. The mother was restrained from relocating the children's residence beyond a defined geographical area. The court also made detailed orders for the children to spend gradually increasing time with the father, culminating in alternating weekends, half of school holidays, and other special occasions, with specific provisions for communication and holiday arrangements. Further orders included restraints on corporal punishment, denigration of a parent, and supervision of the maternal step-grandfather, along with provisions for medical and educational information sharing.

Orders

Orders of the court

All former orders relating to the following children are discharged:

(a) B, born … 2013; and

(b) C, born … 2015.

The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

The children shall live with the mother.

The mother is restrained from establishing the children’s residence at a place:

(a) Further north than the local council area of D Town, NSW;

(b) Further south than the local council area of E Town, NSW; or

The parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

(a) Up to and including Saturday 31 December 2016:

(i) From 10.00 am until 2.00 pm each Saturday (including Saturday 24 December 2016).

(b) From 1 January 2017 up to and including Saturday 1 July 2017:

(i) From 9.00 am until 5.00 pm each Saturday.

(i) From 9.00 am until 5.00 pm each Saturday (including Saturday 23 December 2016); and

(ii) From 9.00 am until 12.00 noon each Sunday (including Sunday 24 December 2016).

(d) From Monday 29 January 2018 thereafter:

(i) During NSW school terms, each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each term;

(ii) For the first half of the Autumn, Winter, and Spring NSW school holidays; and

(iii) During the Summer NSW school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

For the purposes of implementation of Order 5(d) hereof, the NSW school holidays are deemed to commence at 6.00 pm on the last day of school term, the holidays are deemed to end at 6.00 pm on the last day before the new school term commences, and the mid-point is noon on the day halfway between those first and last days.

From 29 January 2018, unless otherwise agreed, Orders 3 and 5(d) hereof are suspended during the following periods:

(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

(b) Between 6.00 pm Saturday and 6.00 pm Sunday on the Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

For the purposes of implementation of Orders 3, 5, and 7 hereof, unless otherwise agreed, the mother or her nominee shall deliver the children to the father or his nominee at the McDonalds Restaurant at F Town, NSW at the commencement of the children’s visits with the father and the father or his nominee shall return the children to the mother or her nominee at the same place at the end of the visits.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

(a) The father at 6.00 pm each Wednesday when the children are living with the mother pursuant to Order 3, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;

(b) The mother at 6.00 pm each Wednesday when the children are spending time with the father pursuant to Order 5(d), and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time; and

(c) The parent with whom they are not then staying, at 6.00 pm on the children’s birthdays, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.

10.

The mother is restrained from causing or permitting the children to be in the physical presence of the maternal step-grandfather, Mr M, unless personally supervised by her.

11.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

12.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

13.

Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

14.

The mother shall keep the father informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

15.

The mother shall authorise and request the principal of any pre-school or school attended by the children to provide to the father, at the father’s expense, copies of all pre-school and school reports and photograph order forms relating to the children.

16.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number.

17.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

18.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

19.

Any and all outstanding applications are dismissed.

Notations

(A) The children are habitually resident in Australia, in the State of NSW.

(B) The father has “rights of custody” in respect of the children within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”) by virtue of these orders.

(C) The mother is able to remove the children from their State of habitual residence to overseas destinations for the purposes of holidays.

(D) Retention of the children away from Australia without the permission of this Court or the consent of the father in writing will constitute a wrongful retention of the children within the meaning of the 1980 Convention.

(E) These orders constitute “measures of protection directed to the protection of the person of the children” within the meaning of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

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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