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West and West

West and West

Case [2015] FamCA 839 8 October 2015

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FAMILY COURT OF AUSTRALIA

WEST & WEST

[2015] FamCA 839

FAMILY LAW – CHILDREN – mother to have sole parental responsibility – children to live with the mother – where the father is restrained from spending time or communicating with the children – injunction order made pursuant to section 68B and section 114 – authority to act pursuant to section 68C – where the father is an unacceptable risk to the children – where risk cannot be ameliorated by supervision – where the presumption of section 61DA is rebutted

Family Law Act 1975 (Cth) s 4, s 4ABs 60B, s 60CA, s 60CC, s 60 DA, s 60DAA, s 60DAC, s 61DA, s68B, s68C, s114, s122AA

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
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Re Andrew (1996) FLC 92-692
Blinko & Blinko [2015] FamCAFC 146
T v N [2001 FMCAfam 222

APPLICANT:

Mr West

RESPONDENT:

Ms West

INDEPENDENT CHILDREN’S LAWYER:

Mr T Newman

FILE NUMBER:

CSC

609

2014

DATE DELIVERED:

8 October 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

13, 14, 15 April 2015 and 18, 19 and 20 August 2015

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Wilson

SOLICITORS FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

West Family Law

Mr Victoire

Newman Family Law

Orders

All previous parenting orders are forthwith discharged.

Parental responsibility

Ms West born … 1979 (“the mother”) have sole parental responsibility for the children B born … 2000; C born … 2002 and D born … 2010 (“the children”).

With whom the children will live

The children live with the mother.

Restraints, injunctions and personal protection

Mr West born … 1957 (“the father”) is restrained from spending any time or communicating with the children.
For the personal protection of the mother and the children and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) the father is prohibited and restrained from:
(a)harassing, molesting or stalking the mother and/or the children;
(b)causing or threatening to cause bodily harm to the mother and/or the children;
(c)approaching the mother and/or the children at their place of residence from time to time, their employment from time to time or coming within 50 metres of those places other than as provided for in these orders;
(d)spending time with or attempting to contact or approach the children;
(e)communicating or attempting to communicate with…

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 West and West

Details

AGLC: West and West [2015] FamCA 839
Case: [2015] FamCA 839
Decision Date: 8 October 2015

CaseChat Overview and Summary

In *West and West*, heard before Tree J, the dispute concerned parenting orders for three children, B, C, and D. The orders addressed parental responsibility, with whom the children would live, and imposed significant restraints and injunctions upon the father, Mr West.

The court was required to determine the appropriate parenting arrangements for the children, including the allocation of parental responsibility and the children's living arrangements. Furthermore, the court had to consider the necessity and scope of personal protection orders and injunctions against the father, particularly in light of concerns for the safety of the mother and the children. The court also considered the role and discharge of the Independent Children's Lawyer.

Tree J ordered that the mother have sole parental responsibility for the children and that the children live with her. The father was restrained from spending any time or communicating with the children. Crucially, pursuant to sections 68B and 114 of the *Family Law Act 1975* (Cth), the father was prohibited from harassing, molesting, or stalking the mother and children, causing or threatening bodily harm, approaching their residences or places of employment within 50 metres, and attempting to contact or approach the children or their school. The orders also provided for the father's arrest without warrant by police if there were reasonable grounds to believe he had breached the injunction by causing or threatening bodily harm or by harassing, molesting, or stalking. The Independent Children's Lawyer was discharged upon the expiration of the appeal period or the determination of any appeal.

Orders

Orders of the court

All previous parenting orders are forthwith discharged.

Parental responsibility

Ms West born … 1979 (“the mother”) have sole parental responsibility for the children B born … 2000; C born … 2002 and D born … 2010 (“the children”).

With whom the children will live

The children live with the mother.

Restraints, injunctions and personal protection

Mr West born … 1957 (“the father”) is restrained from spending any time or communicating with the children.

For the personal protection of the mother and the children and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) the father is prohibited and restrained from:

(a) harassing, molesting or stalking the mother and/or the children;

(b) causing or threatening to cause bodily harm to the mother and/or the children;

(c) approaching the mother and/or the children at their place of residence from time to time, their employment from time to time or coming within 50 metres of those places other than as provided for in these orders;

(d) spending time with or attempting to contact or approach the children;

(e) communicating or attempting to communicate with the children’s school;

(f) attending the children’s school or at any school event or school functions organised by the school;

(g) removing or attempting to remove or procuring another person to remove the children from any school, institution or other place at which the children attend or are placed by the mother.

Pursuant to s 68C and 122AA of the Act, where a police officer (Federal or State) believes, on reasonable grounds that the father has since the injunction was granted, breached the injunction by:

(a) causing or threatening to cause bodily harm to the person or persons referred to in order 5; or

(b) harassed, molested or stalked any one or other of those person,

the police may arrest the father without warrant and may use such reasonable force as is necessary to make the arrest or to prevent his escape after arrest.

Other orders

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.

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

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.

Citations

AGLC Citation

West and West [2015] FamCA 839

Most Recent Citation

WEST & WEST [2016] FamCAFC 238

Cases citing this decision · 1 of 1 shown

WEST & WEST
[2016] FamCAFC 238

…[2015] FamCA 839…

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Cases cited in this decision · 15 of 15 shown

Blinko & Blinko
[2015] FamCAFC 146 Para 2

…explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].…
Banks & Banks
[2015] FamCAFC 36 Para 5

…a court must have regard to 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].[2] In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] th…
Harridge & Harridge
[2010] FamCA 445 Para 1

…In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra) , proceeded to adopt the following list of inquiries in relation to risk assessment:[4] (1) What harmful outcome is potentially present in this situation? (2) What is the probability of this outcome comi…
S v Australian Crime Commission
[2006] FCAFC 5 Para 5

…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.”[3] [3] 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 3

…In T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] said in relation to the conditions attaching to equal shared care as follows: The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the fo…
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 descr…
Wacando v The Commonwealth
[1981] HCA 60 Para 5

…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)
4 2 mentions (from Para 2)