FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YOUNG & YOUNG | [2010] FMCAfam 931 |
| FAMILY LAW – Parenting – allegations of sexual abuse – whether unacceptable risk of abuse – parenting orders in best interests of children. |
| Evidence Act 1995, s.140 Family Law Act 1975, ss.60D, 64, 66CC, 69ZT, 69ZV, 100, 100A |
| A & A (1976) VR 298 B & B [Access] (1986) FLC 91-758 B & B [Family Law Reform Act 1995](1997) FLC 92-755 Briginshaw & Briginshaw (1938) 60 CLR 336 Brown and Pedersen (1992) FLC 92-271 Re G (a minor) (1987) 1 WLR 1461 Goode & Goode (2006) FLC 93-286 J & Lieschke (1987) 162 CLR 447 Leveque & Leveque (1983) 54 BCLR 164 M & M (1987) FLC 91-830 McKee & McKee (1951) A.C 352 N & S & the Separate Representative(1996) FLC 92-655 Reynolds & Reynolds (1973) 47 A.LJR 499 S & S [1993] NZFLR 657 TF & JF & Children’s Representative[2005] FamCA 394 V & V[2004] FamCA 1081 Vasser & Taylor-Black [2007] FamCA 547 W & W [2005] Fam CA 892 Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 WK v SR (1997) FLC 92-787 Young & Young [2007] FMCAfam 615 |
| Applicant: | MS YOUNG |
| Respondent: | MR YOUNG |
| File Number: | WOC 296 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 30 June & 27 July 2010 |
| Date of Last Submission: | 27 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barry |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Rebecca Bailey & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Falloon |
| Independent Children’s Lawyer: | Williamson Isabella Lawyers & Public Notaries |
ORDERS
That, subject to the provisions of Order 2, the Mother have sole parental responsibility for the children of the relationship namely [S] born [in] 2000 and [K] born [in] 2003, provided that the mother notifies the father of any long-term decisions made.
That the Mother be restrained from relocating the children’s home or changing their schools without first providing the Father with 30 days written notice of her intention to do so.
That the children live with the Mother.
That subject to the provisions of Orders 5, 6 and 7 the children spend time with the Father:
(a)From the making of these Orders until 30 June 2011:
(i)From 9.00am until 5.00pm Sunday for two out of every three consecutive weeks;
(ii)From 9.00am until 5.00pm on Father’s Day;
(iii)From 2.00pm until 8.00pm on Christmas Day;
(iv)From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;
(v)From 9.00am until 5.00pm on the Friday of the first week of Term 1, 2 and 3 school holidays;
(vi)From 9.00am until 5.00pm on the Friday of two out of every three consecutive weeks in the Christmas school holidays;
(vii)At such other times as are mutually agreed between the parties.
(b)From…
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- Young and Young [2010] FMCAfam 931
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- [2010] FMCAfam 931
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CaseChat Overview and Summary
The legal issues before the court included whether the allegations of sexual abuse were substantiated, and if so, how this impacted the father's access to the children. The court also had to consider the best interests of the children, taking into account their age, the need for stability and continuity in their lives, and the potential impact of the allegations on their emotional and psychological well-being.
After considering the evidence, the court found that the allegations of sexual abuse were not substantiated. However, the court determined that it was in the best interests of the children for the mother to have sole parental responsibility, with specific conditions imposed on the father's access. The father was granted visitation rights, subject to various restrictions designed to protect the children, including monitoring of his interactions with them and limitations on overnight stays.
The court's reasoning focused on the need to ensure the safety and well-being of the children, while also recognising the importance of maintaining a relationship with both parents. The detailed orders provided a structured and supervised visitation schedule, with provisions for adjustments as the children grow older and their needs change. The court also emphasised the importance of communication and cooperation between the parents, and imposed restrictions on the discussion of the proceedings and allegations with the children.
Orders
Orders of the court
1.
That, subject to the provisions of Order 2, the Mother have sole parental responsibility for the children of the relationship namely [S] born [in] 2000 and [K] born [in] 2003, provided that the mother notifies the father of any long-term decisions made.
2.
That the Mother be restrained from relocating the children’s home or changing their schools without first providing the Father with 30 days written notice of her intention to do so.
3.
That the children live with the Mother.
4.
That subject to the provisions of Orders 5, 6 and 7 the children spend time with the Father:
(a) From the making of these Orders until 30 June 2011:
(i) From 9.00am until 5.00pm Sunday for two out of every three consecutive weeks;
(ii) From 9.00am until 5.00pm on Father’s Day;
(iii) From 2.00pm until 8.00pm on Christmas Day;
(iv) From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;
(v) From 9.00am until 5.00pm on the Friday of the first week of Term 1, 2 and 3 school holidays;
(vi) From 9.00am until 5.00pm on the Friday of two out of every three consecutive weeks in the Christmas school holidays;
(vii) At such other times as are mutually agreed between the parties.
(b) From 1 July 2011 until 1 January 2012:
(i) From 9.00am Saturday until 11.00am Sunday each alternate weekend;
(ii) From 9.00am until 5.00pm on Father’s Day;
(iii) From 2.00pm until 8.00pm on Christmas Day;
(iv) From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;
(v) From 9.00am until 5.00pm on the Wednesday of the first week of Term 1, 2 and 3 school holidays;
(vi) From 9.00am until 5.00pm on the Wednesday prior to each alternate weekend visit as set out in (i) above during the Christmas school holidays;
(vii) At such other times as are mutually agreed between the parties.
(c) From 2 January 2012:
(i) from 9.00am Saturday until 4.00pm Sunday each alternate weekend;
(ii) From 9.00am until 5.00pm on Father’s Day;
(iii) From 2.00pm until 8.00pm on Christmas Day;
(iv) From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;
(v) From 9.00am until 5.00pm on the Wednesday of the first week of Term 1, 2 and 3 school holidays;
(vi) From 9.00am until 5.00pm on the Wednesday prior to each alternate weekend visit as set out in (i) above during the Christmas school holidays;
(vii) At such other times as are mutually agreed between the parties;
5.
That the time the children spend with the Father, pursuant to these Orders, be monitored by members of the Father’s family known to the children until 1 March 2015, when the child [S] has turned 14 and the child [K] has turned 12.
6.
That, subject to Orders 7 and 8 below, the times the children spend overnight with the Father shall take place at the home of the paternal grandparents.
7.
That the Father be restrained from:
(a) staying overnight at the paternal grandparents home, whenever the children are there, between the hours of 9.00pm to 6.00am, from the making of these Orders until 1 February 2014;
(b) being present when the children are in the bathroom toilet, or are dressing or undressing;
(c) being present in any room with the children alone in which the door is shut.
8.
That as from 2 January 2012 in the event the Father proposes to take the children away for short overnight holidays (ie. no more than three consecutive overnights) with members of the paternal family, he is to provide the Mother with no less than 30 days written notice, with such notice to include full accommodation and emergency telephone contact details. The Father is to ensure that he sleeps separately from the children and does not approach the area in which the children are sleeping between the hours of 9.00pm and 6.00am and the children are to be accommodated with the paternal grandparents and/or another adult member of the paternal family known to the children.
9.
That the children be at liberty to communicate with the Father by telephone at any time they express a wish to do so and in this respect the Mother shall be responsible to facilitate the children communicating with the Father by telephone.
10.
That the father is to communicate with the children by telephone on each Thursday at 6pm, with the father to contact the children on a telephone number provided to him by the mother, and with the mother to facilitate such telephone communication
11.
That the Mother be restrained from discussing these proceedings or the allegations of sexual abuse with the children and use her best endeavours to ensure that no other person discusses these proceedings or the allegations of sexual abuse with the children.
12.
That the children attend confidential counselling with Ms J or Ms M or such other person as may be nominated by Associate Professor Q and that the Mother do all things necessary to facilitate the children attending on those counsellors.
13.
That both parents do all things necessary and sign all necessary documents to enrol in a Parenting After Separation Program with a view to considering how they may manage and improve parental communication in respect of issues pertaining to the children.
14.
That change over shall be facilitated by the Father collecting and then returning the children from the Mother’s home in the presence of a member of the paternal family.
15.
That the Mother continue to attend on Mr D or such other health professional that she is referred to, to provide her with support and counselling to assist her to adjust to the children spending time with the Father.
16.
That the Mother be restrained from inappropriately questioning the children about the time they spend with the Father.
17.
That the Mother use her best endeavours to ensure that no other person inappropriately questions the children about the time they spend with the Father.
18.
That the Mother ensures the children are equipped with all required medication including asthma medication during any time they are to spend with the Father.
19.
That the parents are each to ensure that the other parent is kept informed as soon as is reasonably practicable of:-
(a) any serious medical problems or illness suffered by the children;
(b) any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent;
(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d) any social, school or religious functions which the children are to attend;
(e) the telephone contact number of the parent;
(f) any other matter relevant to the welfare of the children.
20.
That the parents are to communicate about the children in writing, by email, via SMS, with the assistance of an adult member of the paternal family and/or via any other means as is agreed to between the parents.
21.
That each of the parents are to provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.
22.
That each of the parents are to be permitted to liaise directly with the children’s school(s) and sporting bodies to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.
23.
That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
24.
That each parent and member of their respective families is entitled to attend all events involving the children including, but not limited to:-
(a) sporting fixtures;
(b) extra curricular activities that allow for parental attendance or participation;
(c) school functions and events that allow for parental attendance or participation – AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents;
PROVIDED THAT the father is not to physically approach the mother at such events and must maintain a distance of 50m from here, where it is reasonably practicable to do so.
25.
That both parents are to be restrained from making critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of either of the children and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of either of the children.
26.
That in the event that either parent wishes to remove the children from the state of NSW for a holiday period, they will notify the other parent in writing, no later than 72 hours before the trip of the proposed destination, a mobile or other emergency telephone contact member and a proposed return date.
27.
The father’s time with the children in accordance with these Orders is suspended for one (1) week of each of the mid year school holidays and for three (3) weeks of the December/January school holidays, PROVIDED THAT the mother gives notice to the father that she will in fact be away on holidays with the children during these periods.
NOTATION
(a) The paternal grandparents collectively and severally undertake to return the children to their mother at the first reasonably appropriate opportunity in the event of one or both of the children becoming and remaining unduly distressed.
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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