YARBOROUGH & YARBOROUGH - [2020] FCCA 3546

FEDERAL CIRCUIT COURT OF AUSTRALIA

YARBOROUGH & YARBOROUGH

[2020] FCCA 3546

Catchwords:
FAMILY LAW – Interim hearing – parenting application – allegations of possible sexual abuse of children – unacceptable risk – investigation by Department of Communities and Justice – whether time should be supervised – orders made for supervised time and Facetime communication between parent and older two children and for Facetime communication between parent and youngest child.

Legislation:

Family Law Act 1975 (Cth), ss.11F; 60CC

Cases cited:

Briginshaw v Briginshaw [1938] HCA 34; (1998) 60 CLR 336

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode [2006] FamCA 1346

Hoda & Pallavi [2020] FamCA 44

Johnson & Page [2007] FamCA 1235

M & M [1988] HCA 10; (1988) 166 CLR 69

SS & AH [2010] FamCAFC 13

W & W(Abuse Allegations: Unacceptable Risk) (2005) FLC 93-235

Applicant:

MR YARBOROUGH

Respondent:

MS YARBOROUGH

File Number:

SYC 6995 of 2020

Judgment of:

Judge M Neville

Hearing date:

18 December 2020

Date of Last Submission:

18 December 2020

Delivered at:

Sydney

Delivered on:

22 December 2020

REPRESENTATION

Counsel for the Applicant:

Dr Barnett

Solicitors for the Applicant:

ATW Family Law

Counsel for the Respondent:

Ms Cantrall

Solicitors for the Respondent:

Kyle & McGowan Family Law

Solicitors for the Independent Children's Lawyer:

Mr Lennon of Sydney West Family Lawyers

THE COURT ORDERS, PENDING FURTHER ORDER:

The children X born in 2007 (“X”), Y born in 2010 (“Y”) and Z born in 2015 (“Z”) (collectively referred to as “the children”) shall live with the mother.
X and Y shall spend time and communicate with the father:
(a)During the gazetted NSW school holiday periods, except during the gazetted NSW school holiday periods, from 10 am to 4 pm one day per week supervised by a supervised contact service with the parties to share all costs of the supervision including any reports furnished by the agency;
(b)During the NSW school term time, except during the gazetted NSW school holiday periods, from 10 am to 4 pm for three (3) Saturdays each month supervised by a supervised contact service with the parties to share all costs of the supervision including any reports furnished by the agency
(c)Via Facetime for a period of up to one (1) hour twice a week as agreed between the parties or failing agreement from 5pm to 6 pm on Tuesday and Thursdays; and
(d)Any other times as agreed between the parties.
Z shall communicate with the father via Facetime for a period of up to one (1) hour twice a week as agreed between the parties or failing agreement from 5 pm to 6 pm on Tuesdays and Thursdays.
The matter be adjourned to 15 January 2021 at 9.30am for mention.

IT IS NOTED that publication of this judgment under the pseudonym Yarborough & Yarborough is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6995 of 2020

MR YARBOROUGH

Applicant

And

MS YARBOROUGH

Respondent

REASONS FOR JUDGMENT

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 YARBOROUGH & YARBOROUGH

Details

AGLC: YARBOROUGH & YARBOROUGH [2020] FCCA 3546
Case: [2020] FCCA 3546
Decision Date: 22 December 2020

CaseChat Overview and Summary

In *Yarborough & Yarborough*, heard by Neville J, the proceedings concerned an interim parenting application arising from allegations of possible sexual abuse of the children. The Department of Communities and Justice had conducted an investigation into these allegations, and the court was required to determine the appropriate interim arrangements for the children's time with the parent.

The central legal issue before the court was whether there was an unacceptable risk to the children, necessitating specific interim orders regarding their contact with the parent. This involved assessing the information available, including the findings of the departmental investigation, to determine the level of supervision required for any contact.

Neville J reasoned that, given the serious nature of the allegations and the ongoing investigation, it was necessary to implement measures to protect the children. The court ordered that the parent's time with the older two children would be supervised. Furthermore, the court ordered that Facetime communication would be permitted between the parent and the older two children, and also between the parent and the youngest child.

Orders