White and Mathers - [2012] FamCA 645

FAMILY COURT OF AUSTRALIA

WHITE & MATHERS

[2012] FamCA 645

FAMILY LAW – CHILDREN – Magellan proceedings – sole parental responsibility – with whom a child lives – best interests of children – allegations of child sexual abuse – meaning of unacceptable risk – relevant standard of proof – consideration of child sexual abuse allegations– whether it is appropriate for the father to spend supervised time with the children – where it is appropriate for the father to spend supervised time with one child.

Family Law Act 1975 (Cth): ss 60B; 60CA; 61DA; 65D; 65DAA; 60CC

Cowley & Mendoza [2010] FamCA 597
M v M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr White

RESPONDENT:

Ms Mathers

FILE NUMBER:

PAC

1140

2011

DATE DELIVERED:

3 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

19, 20, 21, 22 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Santisi

SOLICITOR FOR THE APPLICANT:

Denison Toyer

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Sharee Cassel & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

Orders

That the mother have sole parental responsibility for the children T born on … October 2002 and C, born on … September 2005 (hereinafter referred to respectively as “T” and “C”).
That T and C live with the mother.
That T spend no time with the father.
That C spend time with the father for a period of two hours each calendar month to occur on either the first Saturday or Sunday of each month.
That for the purposes of C spending time with the father in accordance with Order 4 such time shall:
5.1occur and be supervised by staff at a contact centre (‘the contact centre’) agreed by the parties or, failing agreement as nominated by the Independent Children’s Lawyer (ICL);
5.2be for a period of not less than two hours on each occasion at times convenient to the manager of the contact centre in consultation with each parent.
That each parent shall:
6.1arrange a time for an Intake Assessment with the manager of the contact centre within seven (7) days of agreement or nomination by the ICL;
6.2 participate in the assessment as scheduled;
6.3comply with any appointments made by the manager of the contact centre for supervised time in compliance with these orders;
6.4pay equally the fees nominated by the manager of the contact centre for the provision of its services.
The father shall be at liberty to obtain from both children’s school details regarding their progress, including school reports, regardless of any authority the mother may or may not have provided to the relevant school and the mother shall ensure the father is kept informed as to the current school attended by both children.
That the mother shall ensure that T’s therapeutic relationship with Ms M and any other…

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 White and Mathers

Details

AGLC: White and Mathers [2012] FamCA 645
Case: [2012] FamCA 645
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard a dispute between Mr White (the applicant father) and Ms Mathers (the respondent mother) concerning the parenting arrangements for their two children, T and C. The father sought equal shared parental responsibility and proposed significant time with the children, while the mother sought sole parental responsibility, with the children living with her and having no contact with the father. The Independent Children’s Lawyer proposed sole parental responsibility for the mother, with T having no contact with the father and C having limited supervised contact. The mother alleged that the father had sexually and emotionally abused T and C, and had also abused her son S.

The court was required to determine the best interests of the children, specifically addressing the allegations of child sexual abuse and the meaning of an "unacceptable risk" in this context. The court also had to consider the appropriate standard of proof for such allegations and whether it was appropriate for the father to spend any time with the children, and if so, under what conditions. The court's determination of these issues would inform the final orders regarding parental responsibility, the children's living arrangements, and the nature and extent of any time the children might spend with their father.

Justice Stevenson found that both parents were unreliable witnesses, noting inconsistencies and a lack of frankness in their evidence. The court considered the evidence from the Independent Children’s Lawyer, family consultants, and various witnesses, including friends and family of both parties, as well as T's sexual assault counsellor. The court applied the principles outlined in section 60B of the *Family Law Act 1975* (Cth), focusing on the best interests of the children, including protection from harm and ensuring meaningful involvement of both parents where consistent with those interests. The court concluded that the mother should have sole parental responsibility and that the children should live with her.

The court ordered that T spend no time with the father. However, C was to spend two hours per month with the father, supervised at a contact centre. The orders also detailed the process for arranging supervised time, including intake assessments and equal sharing of contact centre fees. The father was granted liberty to obtain school progress details for both children, and the mother was to keep him informed of their current school. Further orders addressed the conclusion of T's therapeutic relationship with Ms M and the referral to a new counsellor, with the selected professional to be provided with a copy of the judgment. The father was also at liberty to provide the judgment to any therapist he engaged.

Orders