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WATSON & BURTON

WATSON & BURTON

Case [2015] FamCA 549 16 July 2015

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FAMILY COURT OF AUSTRALIA

WATSON & BURTON

[2015] FamCA 549

FAMILY LAW – CHILDREN – sole parental responsibility – where equal time not in children’s best interest – where mother poses a psychological risk to children – where mother made a number of false allegations of sexual abuse by the father and previous partners – where the Family Report writer did not consider the effect of the mother’s allegations upon the father.

Family Law Act 1975 (Cth) s 60B s 60CA s 60CC s 61DA s 65DAA s 65DAC
Evidence Act 1999 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
M v M (1988) 166 CLR 69
T v N [2001] FMCAfam 222

APPLICANT:

Mr Watson

RESPONDENT:

Ms Burton

INDEPENDENT CHILDREN’S LAWYER:

Ms Sheehy

FILE NUMBER:

BRC

12037

2007

DATE DELIVERED:

16 July 2015

PLACE DELIVERED:

Townsville

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

19, 20 and 21 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Slade-Jones

SOLICITORS FOR THE APPLICANT:

Natalie McDonald Law

COUNSEL FOR THE RESPONDENT:

Mr Glenday

SOLICITORS FOR THE RESPONDENT:

Sarah Cleeland Family Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms Black

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Rhonda Sheehy & Associates

Orders

All previous parenting orders be discharged.
The children B born … 2004 and C born … 2008 (“the children”) shall live with the father.
The father shall have sole parental responsibility for all decisions concerning the long-term care and welfare and development of the children, but otherwise each parent shall have the sole responsibility for all decisions concerning day-to-day care, welfare and development of the children for the time that they are in that parent’s care.
The father is to notify the mother in writing of all decisions made by him concerning the long-term care, welfare and development of the children pursuant to Order 3 of these Orders.
The mother shall spend time with the children at all times as may be mutually agreed, but failing agreement each alternate week from after school on Thursday to before school on Monday.
Notwithstanding the above, the children spend time with each of the parents on special occasions as follows:
(a)With the mother on Mother’s Day from 9:00am to 5:00pm;
(b)With the father on Father’s Day from 9:00am to 5:00pm;
(c)Half of the Queensland gazetted school holidays with the mother to have the children for the first half of holidays in odd numbered years and the second half in even numbered years;
(d)With the mother from 12:00pm Christmas Eve to 3:00pm Christmas Day in even numbered years and from 3:00pm Christmas Day to 12 :00pm Boxing day in odd numbered years;
(e)With the father from 3:00pm…

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 WATSON & BURTON

Details

AGLC: WATSON & BURTON [2015] FamCA 549
Case: [2015] FamCA 549
Decision Date: 16 July 2015

CaseChat Overview and Summary

In the matter of *Watson & Burton*, heard by Tree J, the court was required to determine parenting orders concerning two children, B and C. The dispute involved the living arrangements and parental responsibilities for the children, as well as the specific times each parent would spend with them, including arrangements for special occasions and holidays.

The legal issues before the court included the allocation of parental responsibility for long-term and day-to-day decisions concerning the children's care, welfare, and development. The court also had to determine the primary residence of the children and establish a detailed schedule for the children's time with each parent, encompassing regular contact, school holidays, and significant annual events. Further issues involved communication protocols between the parents regarding decisions and contact, as well as provisions for school and medical information sharing.

Tree J ordered the discharge of all previous parenting orders. The children were to live with the father, who was granted sole parental responsibility for all long-term decisions regarding their care, welfare, and development. Day-to-day decisions were to be the responsibility of the parent in whose care the children were at the time. The court then set out a comprehensive schedule for the children's time with the mother, including specific arrangements for weekdays, weekends, school holidays, and various special occasions such as birthdays, Christmas, and Easter. Provisions were also made for communication, school involvement, and the sharing of information regarding the children's health and education. The Independent Children's Lawyer was discharged, and all other extant applications were dismissed.

Orders

Orders of the court

All previous parenting orders be discharged.

The children B born … 2004 and C born … 2008 (“the children”) shall live with the father.

The father shall have sole parental responsibility for all decisions concerning the long-term care and welfare and development of the children, but otherwise each parent shall have the sole responsibility for all decisions concerning day-to-day care, welfare and development of the children for the time that they are in that parent’s care.

The father is to notify the mother in writing of all decisions made by him concerning the long-term care, welfare and development of the children pursuant to Order 3 of these Orders.

The mother shall spend time with the children at all times as may be mutually agreed, but failing agreement each alternate week from after school on Thursday to before school on Monday.

Notwithstanding the above, the children spend time with each of the parents on special occasions as follows:

(a) With the mother on Mother’s Day from 9:00am to 5:00pm;

(b) With the father on Father’s Day from 9:00am to 5:00pm;

(c) Half of the Queensland gazetted school holidays with the mother to have the children for the first half of holidays in odd numbered years and the second half in even numbered years;

(d) With the mother from 12:00pm Christmas Eve to 3:00pm Christmas Day in even numbered years and from 3:00pm Christmas Day to 12 :00pm Boxing day in odd numbered years;

(e) With the father from 3:00pm Christmas Day to 12:00pm Boxing day in odd numbered years and from 12:00pm Christmas eve to 3:00pm Christmas Day in even numbered years.

(f) On the children’s birthdays each child to spend half day with each parent to be pre-arranged and agreed by the parents.

(g) The children will spend time with each parent on each parent’s respective birthday between 9:00am and 5:00pm, if this falls on a weekend or non-school day. If this falls on a school day the children shall spend time with that parent from after school to before school the following day, with the parent to collect the children from school and return them to school the following morning before school begins;

(h) With the mother at Easter from 12:00pm Easter Saturday to 12:00pm Easter Sunday in odd numbered years;

(i) With the father at Easter from 12:00pm Easter Saturday to 12:00pm Easter Sunday in even numbered years.

All changeovers that do not occur at the children’s school occur at the Coles Carpark, D Town.

Telephone contact between the children and the mother occur on Thursdays between 4:30pm and 5:00pm with the mother to initiate the call and the father to facilitate the call.

When the children are with the mother during school holidays, the father be at liberty to contact the children on Thursdays between 4:30pm and 5:00pm with the father to initiate the call and the mother to facilitate the call.

10.

The mother and father be at liberty to attend all school functions including, but not limited to, sports days, carnivals, concerts, plays, fetes, parent/teacher meeting and the like.

11.

The mother and father take all steps necessary with the Principal/secretary of the school where the children attend to enable each to receive at his/her address and at his/her expense all copies of the children’s school reports, school photographs and newsletters.

12.

Each party will keep the other informed in writing of his/her current residential address and contact telephone numbers and of any change within forty-eight (48) hours of any such change.

13.

The mother and father by these Orders, authorise all health care providers and educational experts involved with the children to liaise directly with each parent at his/her request and at his/her expense. The mother and father shall immediately provide the names, addresses and contact details of all health care providers and educational experts to each other by text message.

14.

Each party shall contact the other in the event of any medical emergency or other emergency involving the children whilst they are spending time with him/her.

15.

The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

16.

Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

WATSON & BURTON [2015] FamCA 549

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Cases cited in this decision · 13 of 13 shown

Banks & Banks
[2015] FamCAFC 36 Para 6

…which a court must consider in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].…
S v Australian Crime Commission
[2006] FCAFC 5 Para 7

…unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than…
Re W (Sex abuse: standard of proof)
[2004] FamCA 768 Para 3

…“inexact proofs, indefinite testimony or indirect inferences.”[1] [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].…
T & N
[2001] FMCAfam 222 Para 8

…In his submissions, Mr Slade-Jones referred me to the decision of Ryan FM (as her Honour then was) in T v N [2001] FMCAfam 222 where at [93] her Honour listed the following factors that the court “should particularly examining in cases where a party seeks orders that they share a time equally”: The factors that the c…
M v M
[1988] HCA 68 Para 2

…In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows: 20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the…
J v Lieschke
[1987] HCA 4 Para 2

…t to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464. 21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is su…
Briginshaw v Briginshaw
[1938] HCA 34 Para 2

…s true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given desc…
Wacando v The Commonwealth
[1981] HCA 60 Para 7

…3-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislati…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCA 66 Para 2

…In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be pro…
(1951) AC 352
(1951) AC 352 Para 2

…y or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make…
(1987) 1 WLR 1461
(1987) 1 WLR 1461 Para 2

…s) (1986) FLC 91-758, at p 75,545), a "real risk" ( Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" ( In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. I…
Leveque v Leveque
1 WLR 1461 Para 2

…M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" ( B. v. B . (Access) (1986) FLC 91-758, at p 75,545), a "real risk" ( Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" ( In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts…
McKee v McKee
(1957) AC 352 Para 2

…ngs for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
60B 2 mentions