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White & White & Anor

White & White & Anor

Case [2012] FamCA 804 20 September 2012

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Family Law

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FAMILY COURT OF AUSTRALIA

WHITE & WHITE AND ANOR

[2012] FamCA 804

FAMILY LAW – CHILDREN – BEST INTERESTS – Competing parenting orders sought by father, mother and maternal grandmother – Meaningful relationship – Need to protect children from harm – Relocation – Mother and father live in Queensland – Maternal grandmother lives in Victoria – Parental responsibility – Determination children’s best interests met by father having sole parental responsibility for the children’s health and education and otherwise mother and father have equal shared parental responsibility for major long-term issues – Children’s living arrangements – Children’s best interests – Reasonable practicability – Children’s best interests met by living with father and spending time with mother and maternal grandmother – This arrangement also reasonably practicable

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4(1), 60CC

AMS v AIF (1999) CLR 160
B and B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
Collu & Rinaldo [2010] FamCAFC 53
D & F [2001] FamCA 382
D & N [2007] FamCA 57
D v SV (2003) FLC 93-137
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
Hilton v Allen (1940) 63 CLR 691
Johnson & Page (2007) FLC 93-344
Lindsay & Baker (2007) FLC 93-347
M and M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Napier and Hepburn (2006) FLC 93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
R and R: Children’s wishes (2000) FLC 93-110
R v R (Children’s wishes) (2002) FLC 93-108
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Reifek v McElroy (1965) 112 CLR 517
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC115
Taylor v Barker (2007) FLC 93-345
WK v SR (1997) FLC 92-787

APPLICANT:

Mr White

FIRST RESPONDENT:

Ms White

SECOND RESPONDENT:

Ms Gallop

FILE NUMBER:

BRC

1142

2009

DATE DELIVERED:

20 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

6, 7 and 8 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wardle

SOLICITORS FOR THE APPLICANT:

Richard Gray & Associates

THE FIRST RESPONDENT:

In person

THE SECOND RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Walker-Munro

THE INDEPENDENT CHILDREN’S LAWYER:

Mr Blayney
Legal Aid Queensland

Orders

IT IS ORDERED

In the terms of the minute of orders Annexure A (prepared by the independent children’s lawyer).

AND IT IS FURTHER ORDERED

The independent children’s lawyer not be discharged until 20 March 2013.

AND IT IS FURTHER ORDERED

Pursuant to s 65DA(2) and s 62B, 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

NOTATIONS

The orders in Annexure A are final parenting…

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

AGLC: WHITE & WHITE AND ANOR [2012] FamCA 804
Case: [2012] FamCA 804
Decision Date: 20 September 2012

CaseChat Overview and Summary

This matter concerned final parenting orders made by O'Reilly J in the Federal Circuit and Family Court of Australia. The proceedings involved the father, the mother, and the maternal grandmother, with an independent children's lawyer appointed to represent the children's interests. The court was tasked with determining the parenting arrangements for the children, considering various evidence and statutory provisions.

The central legal issues before the court were to assess the risk of harm to the children and to determine what arrangements would be in their best interests. This involved evaluating the evidence presented by all parties, including expert reports from psychiatrists and social workers, as well as previous family reports. The court was required to apply the principles established in relevant case law, particularly concerning the concept of a "meaningful relationship" and the assessment of unacceptable risk.

O'Reilly J's reasoning focused on a prospective assessment of the factors indicating potential harm to the children, acknowledging that risk involves both the likelihood of an event and the severity of its consequences. The court adopted a "prospective approach" to the "meaningful relationship" consideration, as endorsed by the Full Court, focusing on the benefit to the child of such relationships. The judge indicated that not all evidence would be detailed but that all evidence had been considered in reaching the decision.

The court made final parenting orders in terms of a minute prepared by the independent children's lawyer. The independent children's lawyer was to remain in place until 20 March 2013, with provisions for urgent relisting if circumstances arose before that date. The orders also included a fact sheet detailing obligations, consequences of contravention, and assistance available to the parties, as required by sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

IT IS ORDERED

In the terms of the minute of orders Annexure A (prepared by the independent children’s lawyer).

AND IT IS FURTHER ORDERED

The independent children’s lawyer not be discharged until 20 March 2013.

AND IT IS FURTHER ORDERED

Pursuant to s 65DA(2) and s 62B, 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

NOTATIONS

The orders in Annexure A are final parenting orders.

However as the independent children’s lawyer will not be discharged until 20 March 2013 if between the date of the orders and that date any urgent circumstance should arise in relation to the children’s safety the independent children’s lawyer may apply on short notice for urgent relisting of the matter before the Honourable Justice O’Reilly, or if she not be available, before another judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk. In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it. The father relied on evidence of himself, Ms A White, his mother, and Ms C and Mr C, friends. The mother relied on evidence of herself, and of Mr Z. The maternal grandmother relied on evidence of herself, Ms V, her former husband Mr Gallop’s fiancé, and partner since May 2008, and Mr R, a friend. The independent children’s lawyer relied on evidence of Dr B, psychiatrist, who assessed both the father and the maternal grandmother, Dr A psychiatrist, who assessed the mother, and Ms T, social worker, Legal Aid Queensland, who prepared a family report dated 9 March 2012. The independent children’s lawyer and the parties referred to 3 earlier family reports by Ms W, social worker, dated 25 March 2009, 14 July 2010 and 29 January 2011, but principally for historical reference. The parties relied also on 16 documentary exhibits, ex 1 being an extensive folder of documents prepared by the independent children’s lawyer from documents produced pursuant to various subpoenae, and other documents tendered during the trial by the parties. It is not necessary that I refer in detail to all of the evidence. Largely, I will deal with the evidence that I consider to be the most relevant and helpful when dealing with the statutory matters which I must consider. It ought not be inferred, if the evidence of a particular witness or part of the evidence of any witness is not referred to, that I have not had proper regard to all of the evidence. I turn now to the statutory matters concerning the children’s best interests. The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.

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

WHITE & WHITE AND ANOR [2012] FamCA 804

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Cases cited in this decision · 18 of 18 shown

MRR v GR
[2010] HCA 4 Para 3

…In MRR v GR (2010) 240 CLR 461, the High Court said, in relation to s65DAA(1): 15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child , not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative o…
Korban & Korban
[2009] FamCAFC 143 Para 4

…and (c) suggests a consideration tending to result in or the need to consider “positively” the making of an equal time order. In Korban & Korban [2009] FamCAFC 143, the Full Court explained that in Goode the Court did not intend to put a “gloss” on the plain wording of s65DAA(1) by its use of the word “positively” s…
Starr & Duggan
[2009] FamCAFC 115 Para 3

…In Starr & Duggan [2009] FamCAFC 115 the Full Court at [33] –[37] referred to the “interplay” between the paramountcy principle and the “framework” of the legislation emphasising that inevitably there will be dual consideration of some matters in particular because the consideration of the s 60CC factors “does not ta…
Sealey & Archer
[2008] FamCAFC 142 Para 1

…In McCall & Clark (2009) FLC 93-405 at [57]-[62] the Full Court referred to this necessity at [59]; and to the following analysis in Sealey & Archer [2008] FamCAFC 142 at [60]: 66.Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that t…
Dennett & Norman
[2007] FamCA 57 Para 2

…In D & N [2007] FamCA 57 the Full Court (Kay, May and Boland JJ) dealt with a submission (see at par 55) that Rice v Miller (above) had been “statutorily overturned” by the parental responsibility provisions of s 61C. The Court was urged (see at par 56) to decide that “the current line of cases” (including Hodak (…
G & C
[2006] FamCA 994 Para 1

…iate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.…
AMS v AIF
[1999] HCA 26

…AMS v AIF (1999) CLR 160 B and B (1993) FLC 92-357 Briginshaw v Briginshaw (1938) 60 CLR 336 Collu & Rinaldo [2010] FamCAFC 53 D & F [2001] FamCA 382 D & N [2007] FamCA 57 D v SV (2003) FLC 93-137 Goode & Goode (2006) FLC 93-286 Hepburn & Noble (2010) FLC 93-438 Hilton v Allen (1940) 63 CLR 691 Johnson & Page (20…
Rice v Miller
[1993] FamCA 87 Para 2

…ed (see at par 56) to decide that “the current line of cases” (including Hodak (above), B & B (Family Law Reform Act 1995) (1997) FLC 92-755, Rice v Miller (above) and Re Evelyn (1998) FLC 92-807) was incorrect.…
Malec v JC Hutton Pty Ltd
[1990] HCA 20 Para 7

…one, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638). 72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw , is appropriate particularly having regard to s 14…
M v M
[1988] HCA 68 Para 1

…In M and M (1988) 166 CLR 69 at 77, the High Court said: [T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.…
Gronow v Gronow
[1979] HCA 63 Para 1

…indicated that in Re Hodak Lindenmayer J set out the principle in terms which Purdy J saw as being entirely consistent with Gronow v Gronow (1979) 144 CLR 513, namely that the fact that one party was a mother would merely be an important factor to be considered but did not involve any particular principle. 31.His Hon…
Rejfek v McElroy
[1965] HCA 46 Para 2

…ct proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court,…
Helton v Allen
[1940] HCA 20 Para 2

…tion should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 17…
Briginshaw v Briginshaw
[1938] HCA 36 Para 2

…equences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd…
Briginshaw v Briginshaw
[1938] HCA 34 Para 2

…particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCA 66 Para 2

…w v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the…
D & F
[2001] FAMCA 382 Para 1

…In respect of cases concerning grandparents, in D & F [2001] FamCA 382, the Full Court (Ellis, Kay and Warnick JJ), examined the application of the principles and cases by Purdy J in that case at first instance, under Purdy J’s heading at first instance “Grandmother v Parent”. See the Full Court’s discussion at par…
[2010] FAMCAFC 53
[2010] FAMCAFC 53 Para 5

…In Collu & Rinaldo [2010] FamCAFC 53, the Full Court at [374]-[382] emphasised the need, in relation to reasonable practicability, to undertake an analysis of the reasonable practicability of each of the proposals of the parties: [376], giving close attention to the matters in s65DAA(5).…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
4(1), 60CC 3 mentions
Evidence Act 1995 (Cth)
140 2 mentions (from Para 3)
Family Law Reform Act 1995 (Cth)
1 mention (from Para 2)