Young and Young - [2007] FMCAfam 615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUNG & YOUNG

[2007] FMCAfam 615

FAMILY LAW – Parenting Orders – interim – allegations of sexual abuse – father’s time to be supervised or no time at all?

Family Law Act 1975, ss.60CC, 69ZT, 69ZV, 100A

Goode & Goode (2006) FLC 93-286
Re W (Sex Abuse: Standard of Proof) FLC 93-192
Vasser & Taylor-Black [2007] FamCA 547
W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892
WK v SR (1997) FLC 92-787

Applicant:

MR YOUNG

Respondent:

MS YOUNG

File Number:

WOC296 of 2007

Judgment of:

Altobelli FM

Hearing date:

20 July 2007

Date of Last Submission:

20 July 2007

Delivered at:

Wollongong

Delivered on:

17 August 2007

REPRESENTATION

Counsel for the Applicant:

Ms O’Donnell

Solicitors for the Applicant:

Legal Aid Commission of New South Wales

Counsel for the Respondent:

Ms Bailey

Solicitors for the Respondent:

Heard McEwan Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Volk

Solicitors for the Independent Children’s Lawyer:

Williamson Isabella

ORDERS

That, pending further Order, the children are to live with the mother.
That the children S (born in 2000) and K (born in 2003) are to spend time with the father as follows:-
(a)For two (2) hours each week at such times and on such dates as are nominated by the [X] Contact Service (‘the Service’), with such visits to take place at the Service in Wollongong, with the parents to take the first supervised visit times available at the Service in Wollongong, and with such visits to be supervised by staff members of the Service.
(b)At such other times as are mutually agreed to between the parents.
For the purposes of Order 2 above:-
(a)The parents, who the Court notes are currently on the waiting list for supervised visits at the Service, are to do all acts and things necessary to ensure that they remain on the waiting list for supervised visits at the Service until a place becomes available.
(b)The parents are to consider participating in any course, programme and/or counselling session(s) nominated or suggested by staff at the Service in the lead-up to the commencement of the supervised visits between the father and the children and also during the period of time that the supervised visits take place.
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.
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…

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 Young and Young

Details

AGLC: Young and Young [2007] FMCAfam 615
Case: [2007] FMCAfam 615
Decision Date: 17 August 2007

CaseChat Overview and Summary

Young and Young involved a dispute between the parents, concerning the care, control, and welfare of their two children, S and K. The matter was heard in the Family Court of Australia. The parents could not agree on how to manage the children’s contact with the father, the children’s schooling, and the parents’ behaviour in relation to one another and the children. The court was tasked with determining the living arrangements for the children and the specifics of the father’s access, as well as the obligations of both parents regarding communication, medical and educational matters, and the children's welfare.

The court examined the evidence presented and considered the welfare and best interests of the children as the paramount concern. The court determined that the children should reside with the mother, but the father would have supervised contact with them, facilitated by a contact service. The court also set out detailed provisions for communication between the parents, the children’s schooling, medical care, and restrictions on the parents’ behaviour towards each other and in the presence of the children. The court emphasised the importance of both parents refraining from making derogatory remarks about the other in front of the children and from discussing the proceedings with them.

In its orders, the court mandated specific visitation arrangements, required both parents to maintain a list of medical practitioners and provide information about the children's health and education, and restricted the parents from removing the children from New South Wales without consent. The court also directed the parents to ensure the children continued to see a specified health professional and prohibited them from discussing the case with the children. The matter was adjourned for a final hearing, with strict timelines set for the filing of affidavits and documents.

Orders

Orders of the court

That, pending further Order, the children are to live with the mother.

That the children S (born in 2000) and K (born in 2003) are to spend time with the father as follows:-

(a) For two (2) hours each week at such times and on such dates as are nominated by the [X] Contact Service (‘the Service’), with such visits to take place at the Service in Wollongong, with the parents to take the first supervised visit times available at the Service in Wollongong, and with such visits to be supervised by staff members of the Service.

(b) At such other times as are mutually agreed to between the parents.

For the purposes of Order 2 above:-

(a) The parents, who the Court notes are currently on the waiting list for supervised visits at the Service, are to do all acts and things necessary to ensure that they remain on the waiting list for supervised visits at the Service until a place becomes available.

(b) The parents are to consider participating in any course, programme and/or counselling session(s) nominated or suggested by staff at the Service in the lead-up to the commencement of the supervised visits between the father and the children and also during the period of time that the supervised visits take place.

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.

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.

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.

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.

That the father is to refrain from making critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of either of the children and that the father is to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of either of the children.

That the mother is to refrain from making critical or derogatory remarks about the father or members of his family in the presence or within the hearing of either of the children and that the mother is to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or other members of his family in the presence or within the hearing of either of the children.

10.

That both parents are to refrain from discussing these proceedings with either of the children or with any person in the presence or within the hearing of either of the children.

11.

That both parents are to be restrained from removing the children from the State of New South Wales, or from allowing another person to remove the children from the State of New South Wales, without the prior consent of the other parent, and that in the event that such consent is given, the parent removing or allowing another person to remove the children from the State is to provide to the other parent full travel particulars including but not limited to departure and return dates, and accommodation contact details.

12.

Both parents to do all things possible to ensure the children continue to attend at [U], Wollongong Sexual Assault Service. Both parents are restrained from causing the children to see any other health professional in relation to issues raised in these proceedings, other than Dr Quadrio, or as permitted by the Independent Children’s Lawyer or the Court.

13.

Except as provided for in these Orders the Father is to have no other contact or communication with the Children.

14.

Leave is granted to relist the matter on seven (7) days notice.

15.

The matter be adjourned to 5 March 2008 at 10.00am for a two day final hearing.

16.

The Applicant pay the hearing fee or obtain a waiver of that fee by no later than 5 February 2008.

17.

Each party file and serve any affidavits on which they intend to rely by no later than 5 February 2008.

18.

No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:

(a) The affidavits on which the party will rely at hearing; and

(b) The Orders sought at hearing.

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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