Younge and Hallman - [2017] FamCA 492

FAMILY COURT OF AUSTRALIA

YOUNGE & HALLMAN

[2017] FamCA 492

FAMILY LAW – CHILDREN – Allegations of child sexual abuse –With whom the child lives –Where allegations of sexual abuse have been made against the father –Where the abuse allegations against the father are not substantiated –Whether it is in the child’s best interests to spend time with her father – Court finds an equal time arrangement would not be in the bests interests of the child –Orders made for the child to live with the mother and spend substantial and significant time with the father.

Family Law Act 1975 (Cth), ss 60CC, 60CC(2), 60CC(3) 60B(1), 60B(2), 60B(3), 61DA, 65DAA(1), 65DAA(3),65DAA(4), 65DAA(5)

Briginshaw v Briginshaw [1938] HCA 34
MRR v GR [2010] HCA 4
M and M [1988] HCA 68
W and W (Abuse allegations: unacceptable risk) [2005] FamCA 892

APPLICANT:

Mr Younge

RESPONDENT:	Ms Hallman
INDEPENDENT CHILDREN'S LAWYER:	Legal Aid NSW

FILE NUMBER:

PAC

4953

2011

DATE DELIVERED:

14 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

26-28 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Finch

SOLICITOR FOR THE APPLICANT:

Dean Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Russo

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms Shearman

INDEPENDENT CHILDREN'S LAWYER:

Legal Aid NSW

Orders

All existing parenting orders in relation to the child B born on … 2009 ("the child") are discharged.
The father and the mother will have equal shared parental responsibility for the child.
the child will live with the mother.
the child will spend time with the father as follows:
4.1during school terms, each alternate weekend from 9.00 am on Saturday to the commencement of school on the following Monday
4.2for one half of each NSW school holiday period at the conclusion of Terms 1, 2 and 3 as agreed between the parties and in the absence of an agreement for the first half in 2017 and each alternate year thereafter and for the second half and each alternate year thereafter
4.3for one half of each NSW school holiday period at the conclusion of Term 4 as agreed between the parties and in the absence of an agreement for the first week and each alternate week or partial week during the 2017/2018 school holiday period and each alternate year thereafter and for the second week and each alternate week or partial week in the 2018/2019 school holiday period and each alternate year thereafter
4.4from 4.30 pm on Christmas Day until 4.30 pm on Boxing Day in 2017 and each alternate year thereafter and from 4.30 pm on Christmas Eve until 4.30 pm on Christmas Day in 2018 and each alternate year thereafter
4.5on the weekend upon which Father's Day falls from 9.00 am on Saturday to the commencement of school on the following Monday
4.6at other times as agreed between the parties in writing.
Without admission, the father's partner Ms C or the paternal grandmother will be present during the time which the child spends with the father in…

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

Case: [2017] FamCA 492
Decision Date: 14 July 2017

CaseChat Overview and Summary

This matter concerned parenting orders made by Stevenson J in relation to the child B. The dispute involved the father and mother of the child, and the court was required to determine the arrangements for the child's living arrangements, time spent with each parent, and specific issues relating to the child's health and education.

The court was tasked with determining the appropriate orders for equal shared parental responsibility, the child's primary residence, and the specific schedule for the child's time with the father, including during school holidays and special occasions. Additionally, the court had to address conditions surrounding the child's time with the father, communication protocols between the parents, and the management of the child's medical and psychological treatment, including consultations with practitioners and the sharing of information.

Stevenson J discharged all existing parenting orders and made new orders establishing equal shared parental responsibility. The child was ordered to live with the mother, with a detailed schedule for the child's time with the father. The court also imposed conditions on the father's time with the child, requiring the presence of his partner or paternal grandmother for a period of twelve months, subject to extension based on medical advice and parental agreement. The orders further stipulated detailed arrangements for communication between the parents, the child's medical and psychological treatment, and engagement with the child's school and other professionals, emphasising the need for ongoing consultation and information sharing between the parents regarding these matters.

Orders

Orders of the court

All existing parenting orders in relation to the child B born on … 2009 ("the child") are discharged.

The father and the mother will have equal shared parental responsibility for the child.

the child will live with the mother.

the child will spend time with the father as follows:

4.1 during school terms, each alternate weekend from 9.00 am on Saturday to the commencement of school on the following Monday

4.2 for one half of each NSW school holiday period at the conclusion of Terms 1, 2 and 3 as agreed between the parties and in the absence of an agreement for the first half in 2017 and each alternate year thereafter and for the second half and each alternate year thereafter

4.3 for one half of each NSW school holiday period at the conclusion of Term 4 as agreed between the parties and in the absence of an agreement for the first week and each alternate week or partial week during the 2017/2018 school holiday period and each alternate year thereafter and for the second week and each alternate week or partial week in the 2018/2019 school holiday period and each alternate year thereafter

4.4 from 4.30 pm on Christmas Day until 4.30 pm on Boxing Day in 2017 and each alternate year thereafter and from 4.30 pm on Christmas Eve until 4.30 pm on Christmas Day in 2018 and each alternate year thereafter

4.5 on the weekend upon which Father's Day falls from 9.00 am on Saturday to the commencement of school on the following Monday

4.6 at other times as agreed between the parties in writing.

Without admission, the father's partner Ms C or the paternal grandmother will be present during the time which the child spends with the father in his home, subject to the following:

5.1 subject to Order 5.3, this order will apply for a period of twelve months

5.2 Ms C or the paternal grandmother will be available to assist the child in relation to dressing, bathing and toileting as required and

5.3 the application of this order may be extended beyond the initial twelve months only upon the advice of one of the child's treaters (being medical or psychological) in consultation with each parent and as agreed by each parent.

For the purposes of definition of a relevant school holiday period as referred to in Order 4:

6.1 dates will be calculated in accordance with gazetted NSW school terms

6.2 pupil free days will not be included in the relevant school holiday period and

6.3 time will commence at 9.00 am on the relevant first day and conclude at 6.00 pm on the relevant last day.

Regardless of Order 4, unless otherwise agreed, the child's time with the father will be suspended as follows:

7.1 from 4.30 pm Christmas Eve until 4.30 pm Christmas Day in 2017 and each alternate year thereafter and from 4.30 pm Christmas Day until 4.30 pm Boxing Day and

7.2 on the weekend Mother's Day.

Whilst the child is living with the mother, she will communicate with the father at all reasonable times and as initiated by the child and also each Wednesday between 6.30 pm and 7.00 pm, to be facilitated by the father initiating that communication.

Whilst the child is spending time with the father, she shall communicate with the mother at all reasonable times and as initiated by the child.

Specific Issues

10.

10.1 Within 21 days of the date of these orders the mother will attend upon the child's General Medical Practitioner for the purposes of obtaining a referral for the child to attend upon a paediatrician and forthwith notify the father of the details of that referral.

10.2 The parties will follow all directions, treatment recommendations and referrals as provided by that paediatrician.

10.3 Both parties are permitted to attend upon the paediatrician and will keep the other parent informed in relation to appointments and treatment recommendations.

11.

11.1 In consultation with the father, the mother will arrange to attend upon a child psychologist/counsellor who specialises in play therapy, upon referral by the child's paediatrician.

11.2 Both parties are permitted to consult with, attend upon and obtain reviews from the child psychologist/counsellor.

11.3 The parties will ensure that the child continues to attend all appointments as recommended and directed by the child psychologist/counsellor.

12.

Each party will ensure that the child continues to engage with the D Clinic and will comply with all directions in relation to the child's health management including attending appointments, following referrals and treatment recommendations.

13.

The parties are permitted to provide to the child's child psychologist/counsellor a copy of either or both of the two single expert reports prepared by

Dr E if so requested by that treating professional.

14.

Each party is permitted to liaise directly with the child's school, treating practitioners and other specialists and professionals engaged with the child and each parent will ensure that they keep the other informed of any proposed and/or actual changes to these arrangements.

15.

Other than emergency situations, each parent is restrained from engaging a new treating health professional for the child without first advising and consulting with the other party regarding the nature of the treatment and the identity of the treating practitioner.

16.

Each party will keep the other informed of his and her residential, email and phone contact details and advise of any changes within seven days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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