WARSOW & WARSOW - [2010] FamCA 591

FAMILY COURT OF AUSTRALIA

WARSOW & WARSOW

[2010] FamCA 591

FAMILY LAW – CHILDREN – Where allegations made father sexually abused child – Where positive finding of abuse sought then abandoned
FAMILY LAW – EVIDENCE – Where father sought s 69ZT(3) ruling – s 69ZT(3) ruling refused – Where child of pre-school age – Expert evidence established the importance of timely open-ended questions for children this age in order to achieve reliable recollection – Disclosure process contaminated and flawed – Where the degree of medical certainty the child had been sexually abused was low – Assessment of risk – No unacceptable risk of abuse – where father sought positive finding abuse had not occurred – Inappropriate to make the positive finding of non-abuse

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 60CA, 61B, 61C(1), 61DA(2), 61DB, 64A, 65AA, 65DAA, 69ZT, Pt VII

Evidence Act 1995 (Cth) s 140

A v A (1998) FLC 92-800
Day v Perisher Blue Pty Ltd [2005] NSWCA 110
Goode and Goode (2006) FLC 93-286
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Mazorski v Albright (2007) FamLR 516
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Warsow

RESPONDENT:

Ms Warsow

FILE NUMBER:

(P)NCC

1857

2007

DATE DELIVERED:

14 July 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

11- 13, 17-21 May 2010 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC with
Mr Kelly

SOLICITOR FOR THE APPLICANT:

Emery Partners

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Mullane & Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke
Legal Aid NSW

Orders

All previous parenting orders for “the child” J born … December 2004 are discharged.
The parties have equal shared parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father as agreed between the parties but failing agreement as follows:
(a)from the date of these orders for a period of three months each Saturday from 10.00 am to 4.00 pm in the presence of the paternal grandmother;
(b)thereafter and until the end of Term 4 in 2010 each alternate weekend from 9.00 am Saturday to 4.00 pm Sunday upon condition the child stays overnight at the paternal grandmother’s home with the paternal grandmother being present;
(c)thereafter during the 2010/2011 Christmas School holidays from the second Thursday after the preceding period of time pursuant to the above order until the following Tuesday each alternate week and each alternate week thereafter;
(d)from the start of Term 1 2011 during school term, if the child has spent time with the father for the first half of the school holidays (or in 2011 if she has not been in his care during the two weeks prior to the commencement of term), from the first Thursday of the next school term from…

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

Case: [2010] FamCA 591
Decision Date: 14 July 2010

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in December 2004, with the court being the Federal Magistrates Court of Australia. The dispute involved the arrangements for the child's living arrangements and time spent with each parent.

The court was required to determine the extent of shared parental responsibility, where the child would live, and the specific schedule for the child's time with the father. Additionally, the court needed to address provisions for special occasions such as birthdays and Christmas, as well as establish protocols for changeovers, communication between parents regarding the child's health and education, and the process for making allegations of abuse.

The court ordered the discharge of all previous parenting orders and established equal shared parental responsibility. The child was to live with the mother, with a detailed schedule for time spent with the father, which included phased introductions of overnight stays and progressively increasing periods of time. The orders also stipulated specific arrangements for holidays, birthdays, and Christmas, including provisions for the suspension of time with the father on Mother's Day and the child's birthday if those events fell within his allocated time. The court further mandated attendance at a parenting after separation course, prohibited denigration of either parent, and placed restrictions on the mother questioning the child about her time with the father. Provisions were also made for information sharing regarding the child's health and education, and for parties to attend school functions. Crucially, any party intending to report abuse was required to provide copies of the court orders and reasons for judgment to the relevant authority.

Orders

Orders of the court

All previous parenting orders for “the child” J born … December 2004 are discharged.

The parties have equal shared parental responsibility for the child.

The child shall live with the mother.

The child shall spend time with the father as agreed between the parties but failing agreement as follows:

(a) from the date of these orders for a period of three months each Saturday from 10.00 am to 4.00 pm in the presence of the paternal grandmother;

(b) thereafter and until the end of Term 4 in 2010 each alternate weekend from 9.00 am Saturday to 4.00 pm Sunday upon condition the child stays overnight at the paternal grandmother’s home with the paternal grandmother being present;

(c) thereafter during the 2010/2011 Christmas School holidays from the second Thursday after the preceding period of time pursuant to the above order until the following Tuesday each alternate week and each alternate week thereafter;

(d) from the start of Term 1 2011 during school term, if the child has spent time with the father for the first half of the school holidays (or in 2011 if she has not been in his care during the two weeks prior to the commencement of term), from the first Thursday of the next school term from after school until the commencement of school the following Tuesday each alternate week; and in the event the child has spent the second half of the school holidays with the father from after school on the second Thursday of term until before school the following Tuesday and each alternate week thereafter;

(e) from the commencement of the end of Term 1 2011 school holidays for one half of all school holidays being the first half in even numbered years and the second half in odd numbered years;

(f) in 2010 from 10.00 am to 4.00 pm on Father’s Day;

(g) in the event the child would not otherwise spend time with the father on Christmas Day 2010 from 12.00 noon 24 December 2010 until 2.00 pm Christmas Day;

(h) commencing 2011 from 5.00 pm on the day immediately before Father’s Day until 5.00 pm on Father’s Day;

(i) for three hours on the child’s birthday being from the conclusion of school until 6.00 pm if on a school day and from midday until 3.00 pm if not a school day;

(j) at such other times as the parties agree.

In the event the child is to spend time with the father on the weekend which includes Mother’s Day the child’s time with the father is suspended from 5.00 pm on the day immediately before Mother’s Day until the end of that period.

Notwithstanding any order to the contrary at Christmas time the child will spend from 2.00 pm Christmas Day to 6.00 pm Boxing Day with the parent in whose care she would not otherwise be on Christmas Day.

To implement Order 4(a) the mother or her nominee shall deliver the child to the father at his home at the commencement of the period and the father or his nominee shall return the child to the mother at her home at the conclusion of the period.

Other than is provided for in the above order change-over shall occur at the child’s school if change-over is scheduled to occur on a school day and at McDonalds at W if not a school day.

In relation to the child’s birthday the parent with whom the child shall spend the nominated three hours shall collect the child from and return the child to the other parent’s home.

10.

In relation to Christmas Day the parent who is to have the child from 2.00 pm Christmas Day shall collect her from the other parent’s home and that other parent shall collect her at 6.00 pm Boxing Day from the other parent’s home.

11.

In the event the child is to spend time with the father during a period which includes the child’s birthday the child’s time with the father is suspended for three hours on the child’s birthday being from the conclusion of school until 6.00 pm if on a school day and from midday until 3.00 pm if not a school day.

12.

As soon as possible, the parties must attend and complete a parenting after separation course (with Relationships Australia, Interrelate or Centacare).

13.

The parties must not denigrate the other party or members of the other party’s family or friends to or in the presence of the child and must not permit other persons to do so.

14.

The mother is restrained from questioning or permitting any other layperson to question the child before or after she spends time with the father with a view to assessing whether the child is at risk in his care.

15.

The parties must:

(a) keep each other informed of their current address and contact telephone number; and

(b) in the event of the child being hospitalised or receiving medical attention for a serious medical condition when in their care, notify the other as soon as practicable after the first contact with the hospital or medical practitioner.

16.

The parties shall forthwith authorise:

(a) any health professional treating the child to provide to a party upon a request from a party (and at that party’s cost) information in relation to the child’s health; and

(b) the principal(s) of the child’s school to provide to a party upon a request from a party (and at that party’s cost) information in relation to the child’s academic progress, copies of the child’s school reports, copies of school newsletters and copies of the child’s school photographs.

17.

Subject to any direction from a relevant school, each party is at liberty to attend the child’s school and all school and sporting functions.

18.

If any party intends to make any notification to any person in authority in person that the child has been the subject of abuse by any person and makes that allegation they shall, at the time of making the notification to such person to whom they are making the complaint provide them with the following:

(a) a copy of these orders; and

(b) a copy of the reasons for judgment.

19.

If any party intends to make any notification by telephone, or by any means of electronic communication, to any person in authority that the child has been the subject of abuse by any person, then the complainant is to provide to the person in authority at the time of the communication a copy by electronic means:

(a) a copy of these orders; and

(b) a copy of the reasons for judgment.

20.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

21.

Subject to any application for costs all outstanding applications are 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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