FAMILY COURT OF AUSTRALIA
| WARNETT & AMERSON | [2019] FamCA 499 |
| FAMILY LAW – PARENTING – where the child has made disclosures of sexual abuse against a number of male relatives, including the father – where the father is presently spending supervised time with the child two hours per fortnight – where the mother seeks finding of unacceptable risk – where the mother proposes supervision continue until child is 18 years of age – where father proposes unsupervised time – where the Independent Children’s Lawyer proposes supervision until the child commences Year 8 in High School and child undertakes counselling with a therapist accredited by the Office of Children’s Guardian – where the child has very troubled presentation – where the mother seeks sole parental responsibility – where the father proposes equal shared parental responsibility – where the Independent Children’s Lawyer supports sole parental responsibility to the mother. FAMILY LAW – EVIDENCE – Onus of proof – balance of probabilities to establish unacceptable risk. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65D, 65Y, 65DAA, 65DAB, 65DAC, 69ZT, 69ZV, 97, 117 Evidence Act 1995 (Cth) s 140 |
| Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226 Champness & Hanson [2009] FamCAFC 96 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 |
| APPLICANT: | Mr Warnett |
| RESPONDENT: | Ms Amerson |
| INDEPENDENT CHILDREN’S LAWYER: | Lukes Law |
| FILE… |
Continue reading Warnett & Amerson
Sign in free to access the full text
- AGLC
- Warnett & Amerson [2019] FamCA 499
- Case
- [2019] FamCA 499
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent to which the father posed an unacceptable risk of harm to Y, and consequently, what parenting orders were in Y's best interests. This involved assessing the onus of proof, which rested on the mother to establish an unacceptable risk on the balance of probabilities, and considering the specific needs of Y, who presented with a "very troubled presentation." The court also had to decide on the appropriate level of parental responsibility and the nature and duration of contact between Y and the father.
Harper J found that the mother should have sole parental responsibility for long-term decisions, with a requirement to consult the father. Y was ordered to live with the mother. The court made detailed orders regarding Y's time with the father, commencing with supervised contact and gradually transitioning to unsupervised time as Y progressed through high school. These orders included specific provisions for supervision costs, undertakings from the father regarding his conduct during contact, and extensive requirements for counselling and parenting courses for both parents, as well as protective behaviour work for Y. The court also made orders permitting the mother to obtain a passport for Y and to take Y on a family holiday with specific notice requirements.
Orders
Orders of the court
1.
That all prior parenting orders be discharged.
2.
That the mother, Ms Amerson (“the mother”), have sole parental responsibility for the long term decisions in regard to the care, welfare and development of the child, Y born … 2011 (“Y”), with the mother to consult with the father, Mr Warnett (“the father”), in accordance with Order 3.
3.
That before the mother exercises sole parental responsibility pursuant to Order 2, the mother shall:
(a) inform the father of her intention to do so by way of email, where possible at least 14 days prior to making any such decisions;
(b) invite the father to respond within 7 days;
(c) consider the father’s response and thereafter make a decision; and
(d) inform the father as soon as practicable thereafter of the decision made.
4.
That Y live with the mother.
5.
That subject to these Orders, Y spend time with the father as follows:
(a) One afternoon each month, as agreed in writing and if no agreement on the third Wednesday after school for a period of two (2) hours.
(b) On the first Sunday of the month for a period of up to four (4) hours.
(c) For four (4) hours on Christmas Eve at times to be agreed between the parties and failing agreement from 10:00am to 2:00pm.
(d) From the time that Y commences Year 8 in High School (in 2024), during the school term:
(i) Each alternate Wednesday from after school to 7:30pm.
(ii) Each alternate Sunday from 9:00am to 5:00pm for the first two terms.
(iii) During term 3, each alternate weekend from 9:00am Saturday to 5:00pm Sunday.
(iv) From term 4 and thereafter, each alternate weekend from Friday 3:00pm to Sunday 5:00pm.
(e) During the school holidays from 2024, being when Y is in Year 8 in High School:
(i) For two (2) periods of two (2) nights in the school holiday period at the end of term 3 on days agreed between the parties, or in the absence of agreement from 9:00am on Sunday to 5:00pm on Tuesday of the first week of the school holiday period, and 9:00am on Monday to 5:00pm on the Wednesday of the second week of the school holiday period.
(ii) For two (2) periods of five (5) nights in the school holiday period at the end of term 4, as agreed between the parties, or in the absence of agreement from 9:00am on Sunday to 5:00pm on Friday of the first week of the school holiday period and from 9:00am on Tuesday to 5:00pm on Sunday during the second week of January of the following year.
(iii) From 2025, during each of the mid-year school holiday periods for a period of one week, being the first week in odd numbered years and the second week in even numbered years.
(iv) From 2025, for one half of the Christmas School holiday period to be taken on a week about basis, unless otherwise agreed in writing.
(f) For a period of up to 8 hours between 9:00am to 5:00pm on Father’s Day, subject to Order 6 .
(g) For two (2) hours on Y’s birthday at times agreed or otherwise from 3:00pm to 5:00pm.
(h) Such other times as the parents agree in writing.
6.
That until Y commences Year 8 in High School in 2024:
(a) the father’s time be supervised by a professional agency such as FF Agency, (“the professional agency”) or such other service or other person as agreed in writing between the parties and for the purposes of facilitating the supervision the following provisions will apply:
(i) That, if supervision is undertaken by a professional agency, a full report for each visit be generated by the professional agency and that this order be authority for the parents to obtain all contact reports directly from the professional agency or any other supervision agency engaged from time to time.
(ii) That the father be solely responsible for all costs of supervision and of the preparation of supervised contact reports.
(b) The father’s time on Father’s Day shall be subject to and in accordance with the requirements and availability of the professional agency.
7.
For the avoidance of doubt, the parties may, by agreement in writing, vary the terms of Order 6 to substitute a non-professional supervisor.
8.
That within twenty-eight (28) days the father enter into written undertakings to be filed in Court that:
(a) He will ensure that he is not present if Y is being undressed or bathing.
(b) He will not question Y about anything that occurs in the mother’s household.
(c) He will not discuss the parental relationship in the presence or hearing of Y or permit any other person to do so, except during therapy with Y in the presence of a counsellor.
(d) He will not discuss with Y any sexual allegations made by her, except if recommended by Y’s therapist and during any therapy with Y in the presence of a therapist.
(e) He will not discuss with Y her views on how much time she wishes to spend with him, except during therapy with Y, or as recommended by her therapist.
9.
That once the father’s time is unsupervised, if changeover does not occur at the end or beginning of school then the father shall pick up and drop off the child at the nearest McDonald’s restaurant closest to the mother’s residence, or such other location agreed between the parties.
10.
Within six (6) months of the date of these orders, the father take all necessary steps to undertake counselling with a therapist accredited by the NSW Office of Children’s Guardian, for a period of at least six (6) months or for longer if recommended by the therapist, with the counselling to help him deal with the allegations made against him and improve his ability to interact with Y and maintaining personal boundaries.
11.
That both parties within fourteen (14) days, are to enrol in, then engage in and complete within six (6) months, a parenting after separation course such as Keeping Kids in Mind and then shall provide a copy of the certificate of completion to the other parent within twenty-eight (28) days of completion of the course.
12.
That upon Y turning twelve (12) years of age both parties are to have completed a course similar to Bringing up Great Teens, conducted by DD Agency, and then shall provide a copy of the certificate of completion to the other parent within twenty-eight (28) days of completion of the course.
13.
That the mother is to engage in counselling with therapist Ms B (or such other therapist accredited by the NSW Office of Children’s Guardian) to assist her in dealing with the issues raised by the allegations of sexual abuse made by Y, for at least six (6) months, or such time as recommended by the therapist.
14.
That the mother shall do all such things so as to facilitate Y attending upon therapist Ms B (or such other therapist accredited by the NSW Office of Children’s Guardian) to deal with issues arising around her disclosures of sexual abuse and sexualised behaviour and protective behaviour work; for a period of twelve (12) months, or such further time as recommended by the therapist, and that the mother shall attend any such appointments requested by the therapist.
15.
That in 2023 (when Y begins Year 7) the mother do all acts and things to ensure that by no later than term 3 Y is enrolled or engaged to participate in and complete an appropriate private personal protection course with therapist Ms B or a therapist accredited by the NSW Office of Children’s Guardian, for such period as recommended by the therapist, to prepare Y for the commencement of unsupervised time with the father and the mother shall:
(a) ensure that such protection course is concluded by the end of Y’s Year 7 schooling, and
(b) attend any such appointments requested by the therapist.
16.
That the parties shall communicate with each other via email, and in the event of an emergency, via text message, and all such communication shall be in a polite and civil manner, and to facilitate this they are to immediately provide each other the details of their email addresses and phone numbers in the event of a change thereof.
17.
That the mother be permitted to make application for a passport for the child Y born …2011 without the consent of the father.
18.
That pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), the Mother be permitted to take the child, namely Y (born …2011) from Australia for the purpose of a family holiday provided she gives the father:
(a) no less than two (2) months’ written notice of such holiday, specifying the proposed duration, dates, and destination countries, and details of return flights; and
(b) No less than twenty-one (21) days prior to departure, a detailed itinerary of the proposed trip, including all flights, accommodation and locations to be visited.
19.
The parties pay costs of the Independent Children’s Lawyer in the sum of $2,000 each.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.