WHITMAN & BURR - [2011] FamCA 199

FAMILY COURT OF AUSTRALIA

WHITMAN & BURR

[2011] FamCA 199

FAMILY LAW – CHILDREN – BEST INTERESTS – Allegations of sexual abuse of child by the father – where child subsequently denied abuse – where investigations by child protection authorities determined no abuse had occurred – whether father unacceptable risk to the child – where mother has repeatedly encouraged child to make false disclosures against the father – where mother has previously failed to return the child to the father – whether mother unacceptable risk to the child – child to remain living with father – where all time with mother to be supervised

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Telecommunications (Interception and Access) Act 1979 (Cth)

Family Law Rules 2004 (Cth)

B & B [1993] FLC 92-357
B and B (1988) FLC 91-978
Byrne & Byrne (2003) FLC 93-125)
C & J (1996) FLC 92-697
In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655
In the Marriage of Rice & Asplund (1979) FLC 90-725
M and M (1988) FLC 91-979
M v M (1988) 166 CLR 69
McCoy v Wessex (2007) 38 Fam LR 513
Miller v Harrington (2008) FLC 93-383
Miller v TCN Channel Nine Pty Ltd (1986) 67 ALR 321
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
RG v JR [2006] FamCA 293

APPLICANT:

Ms Burr

RESPONDENT:

Mr Whitman

FILE NUMBER:

BRC

6170

2007

DATE DELIVERED:

28 March 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

16 & 17 December 2010

REPRESENTATION

THE APPLICANT:

Ms Burr in person

THE RESPONDENT:

Mr Whitman in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

UPON NOTING that the court has found that the presumption of equal shared parental responsibility is rebutted by reason of the best interests of the child D (‘the child’) born … December, 1997

IT IS ORDERED THAT:

All previous orders, in so far as they apply to D, are discharged, and in lieu, it is ordered as follows:

Parental Responsibility

The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
a.Use his best endeavours to advise the mother in writing of the decision intended to be made;
b.Seek the mother’s written response in relation thereto;
c.Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d.Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
a.Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or…

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: WHITMAN & BURR [2011] FamCA 199
Case: [2011] FamCA 199
Decision Date: 28 March 2011

CaseChat Overview and Summary

In this matter before Murphy J, the court considered a dispute between a father and mother concerning the welfare of their child, D. The proceedings were initiated following allegations of sexual abuse of the child by the father, which were subsequently investigated by child protection authorities and found to be unsubstantiated. The mother had allegedly encouraged the child to make false allegations against the father and had previously failed to return the child to his care.

The central legal issues before the court were whether the father posed an unacceptable risk to the child, and conversely, whether the mother posed an unacceptable risk to the child. The court was required to determine these questions in light of the presumption of equal shared parental responsibility and the overarching principle of the best interests of the child.

Murphy J found that the presumption of equal shared parental responsibility was rebutted due to the best interests of the child. The court reasoned that the mother's conduct, including encouraging false disclosures and failing to return the child, indicated she posed an unacceptable risk. Consequently, the court ordered that the child live with the father and that the father have sole parental responsibility for major long-term issues, with a requirement to consult the mother in writing before making final decisions. All time spent with the mother was to be supervised by a contact centre.

Orders

Orders of the court

UPON NOTING that the court has found that the presumption of equal shared parental responsibility is rebutted by reason of the best interests of the child D (‘the child’) born … December, 1997

IT IS ORDERED THAT:

All previous orders, in so far as they apply to D, are discharged, and in lieu, it is ordered as follows:

Parental Responsibility

The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:

a. Use his best endeavours to advise the mother in writing of the decision intended to be made;

b. Seek the mother’s written response in relation thereto;

c. Consider, by reference to the best interests of the child, any such response prior to making any such decision;

d. Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:

a. Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;

b. Any school which the child attends;

c. The Director of any extra-curricular school or other activity in which the child is involved,

to provide to the other party such information as might reasonably be required about the child together with any report, assessment or other such document provided to a parent in respect of the child.

Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.

Each of the parties shall advise the other and keep the other advised of:

a. Their residential address;

b. Telephone numbers at which they and the child can be contacted;

c. Any email address to which the child can have access,

and shall notify any changes in any such details within 48 hours.

The father shall do all such things as might be required to have the child attend such counselling as might from time to time be recommended by her current counsellor, Ms P, psychologist, including any further or other counselling with such other appropriately qualified counsellor whom she might recommend.

Live With and Time

The child shall live with the father.

The child shall spend time with the mother as follows:

a. Supervised by the W Contact Centre for not less than two hours, or for such longer duration to a maximum of 8 hours that the said Centre might be able to accommodate, on either Saturday or Sunday each alternate week;

b. Commencing on the first Saturday or Sunday upon which the said Contact Centre can accommodate each such period of time and fortnightly thereafter.

The costs of supervision of time in accordance with these Orders shall be borne equally by the parties.

Communication and Restrictions

10.

The mother is at liberty to contact the child by telephone not more than twice per week on days suitable to each but not before 8.30am and not after 8.30pm but otherwise the said restrictions shall remain until D turns 16.

11.

The mother shall:

a. Take all such steps as are necessary so as to ensure that her fiancé, Mr H has no oral or written contact or communication with D;

b. Not contact D whether by telephone, orally, by letter or e-mail save during any period of time previously provided for in these orders.

12.

The Independent Children’s Lawyer shall provide a copy of these Orders and the Reasons for Judgment in this matter to:

a. Ms P and such other counsellor who she might recommend;

b. The Director of the W Contact Centre or such other Contact Centre or individual supervisor appointed by them or agreed in accordance with these Orders;

c. The Director-General of the Department of Communities (Child Safety) or such other authorised person within the Department as the Director-General might direct,

and the publication of same to those individuals is approved pursuant to s 121(9)(g) of the Family Law Act 1975 but no other publication of the Orders and/or Reasons of Judgment, or any other account of the proceedings by the parties, is approved.

13.

The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders or the hearing of any appeal.

IT IS FURTHER ORDERED THAT:

14.

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

15.

Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

16.

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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders

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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