Zammit & Zammit - [2009] FamCA 265

FAMILY COURT OF AUSTRALIA

ZAMMIT & ZAMMIT

[2009] FamCA 265

FAMILY LAW – CHILDREN – Parenting proceedings – mother seeking to discontinue overnight time with father – father seeking increase in time

FAMILY LAW – CHILD ABUSE – Sexual abuse allegations agitated by the mother in the past with State child protection authorities – mother said to believe sexual abuse occurred but no longer occurring – past sexual abuse said not to be a primary factor in mother opposing overnight visits – failure of mother to make any mention of sexual abuse allegations being raised by her contemporaneously with State authorities at any stage of earlier parenting proceedings concluded in 2004, either in any affidavit filed by her or to Court appointed expert or to others – failure of mother to make any mention of earlier allegations in the current parenting proceedings, either in any affidavit filed by her or to the Court appointed expert or to others – mother’s allegations of other abuse of child by father

FAMILY LAW – CHILD ABUSE – Analysis of risk of harm to child in his father’s care to determine if any risk or if magnitude of risk unacceptable

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Equal shared parental responsibility – dismissal of proposal for mother to be given sole parental responsibility

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

HG v R [1999] HCA 2;
Makita v Sprowles [2001] NSWCA 305;
ASIC v Rich & Ors [2005] NSWCA 152;
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157;
Adler v ASIC [2003] NSWCA 131;
Re W and W (abuse allegations; expert evidence) (2001) FLC 93-085;
Harrington-Smithon behalf of the Wongatha People v State of Western Australia (No 7) (2003) 130 FCR 424;
M and M (1988) 166 CLR 69;
Re W (Sex abuse: standard of proof) (2004) FLC 93-192;
Hemior & Sinla [2009] FamCA 181;

Palmer v Dolman [2005] NSWCA 631 per Ipp JA at 41

APPLICANT:

Mr Zammit

RESPONDENT:

Ms Zammit

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

FILE NUMBER:

SYC

1099

2007

DATE DELIVERED:

7 April 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

12, 13, 14 & 27 November 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hugh Byrne Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Ladopoulos

SOLICITOR FOR THE RESPONDENT:

Lexington Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gillies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

Orders

All previous parenting orders are discharged.
The parents are to have equal shared parental responsibility for the children C born … February 1997 and P born … April 1998.
The children are to live with their mother except as otherwise provided in these orders unless otherwise agreed in writing.
The children are to live with their father as follows:
a. during the school term:
(i)every second weekend from after school Friday to the commencement of school Monday,…

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 Zammit & Zammit

Details

AGLC: Zammit & Zammit [2009] FamCA 265
Case: [2009] FamCA 265
Decision Date: 7 April 2009

CaseChat Overview and Summary

In this matter before the Federal Circuit Court of Australia, the parties were the mother and father of two children, C and P. The mother sought to discontinue overnight time with the father, while the father sought an increase in his time with the children. The proceedings also involved allegations of past child abuse, which the mother had previously raised with State child protection authorities.

The court was required to determine the parenting arrangements for the children, specifically addressing the mother's concerns regarding past allegations of sexual abuse and other alleged abuse by the father. A key issue was the risk of harm to the children in the father's care, and whether any such risk was unacceptable. The court also considered the principle of equal shared parental responsibility and whether it should be dismissed in favour of sole parental responsibility for the mother.

Justice Moore analysed the evidence concerning the past allegations of abuse, noting the mother's failure to raise these allegations contemporaneously with State authorities or in previous parenting proceedings concluded in 2004, and her failure to mention them in the current proceedings. The court found that the mother's opposition to overnight visits was not primarily based on these past allegations. After considering the risk of harm, the court determined that equal shared parental responsibility was appropriate and that the children should live with their mother but spend significant time with their father, detailing specific arrangements for weekends, school holidays, and special occasions.

The court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The children were ordered to live with their mother, with specific provisions for the father to have time with the children on alternate weekends during school terms, half of each school holiday period, and on specific special occasions. The orders also included detailed provisions regarding changeovers, communication between parents and children, mobile telephone use, communication with schools and treating professionals, and prohibitions against denigrating the other parent.

Orders

Orders of the court

All previous parenting orders are discharged.

The parents are to have equal shared parental responsibility for the children C born … February 1997 and P born … April 1998.

The children are to live with their mother except as otherwise provided in these orders unless otherwise agreed in writing.

The children are to live with their father as follows:

a. during the school term:

(i) every second weekend from after school Friday to the commencement of school Monday, or Tuesday if Monday is a public holiday, the first weekend to occur on the next weekend the children are scheduled to spend time with their father under the existing orders;

(ii) the weekends referred to in (i) will resume on the first weekend following the resumption of the school term when the children have spent the first half of the school holidays with their father and the second weekend when they have spent the second half of the school holidays with their father;

b. during school holidays:

(i) one half of each school holiday period as agreed in writing or failing agreement for the first half in even numbered years and the second half in odd numbered years;

(ii) for this purpose the school holidays are to begin after school on the last day of term, to conclude before school on the first day of term and the mid point is to be midday on the middle day counting the last and first days of term;

c. special occasions:

(i) if Father's day does not fall on a weekend the children would otherwise be spending time with the father pursuant to these orders they are to spend that weekend with him from Friday after school until before school Monday or Tuesday according to order 4 a. hereof in addition to any other time provided by these orders;

(ii) if Mother’s Day does not fall on a weekend the children would otherwise be in her care pursuant to these orders they are to spend that weekend with her and order 4 a. is suspended for that purpose;

(iii) each Greek Orthodox Easter weekend from the conclusion of school Friday to the commencement of school Monday in even numbered years in addition to any other time provided by these orders;

(iv) the children are to be in the care of their mother on the weekend of Greek Orthodox Easter in odd numbered years and if that is a weekend the children would otherwise be in the care of their father pursuant to these orders the order is suspended for that purpose.

For the purpose of facilitating these orders changeover is to be implemented as follows:

(i) the father, or his nominee, is to collect the children from school and return them to school whenever time with him is scheduled to begin or end on a school day;

(ii) if the time with their father is scheduled to begin or end on a day that is not a school day the father or his nominee is to collect them from their mother’s home for the purpose of going into his care and the mother or her nominee is to collect them from their father’s residence for the purpose of returning to her care;

(iii) each is to advise the other of any nominee they elect to collect or return the children.

Each parent is to permit the children to communicate with their other parent by telephone via a landline to their home at times the children request but not less than every third day during school holiday periods.

Neither child is to be provided with a mobile telephone for use in the other parent’s home unless that is agreed in writing and unless there is also agreement about the frequency and purpose of usage.

Each parent is at liberty to

(i) communicate directly with the children’s school teachers or school authorities and to obtain directly from the school any reports, newsletters, publications or notices that are available to all parents; and

(ii) attend any function at school or related to their schooling such as is open to any parent;

(iii) communicate directly with any treating professional as to the children’s health or treatment of any kind.

Each parent is to keep the other informed about all medical or dental consultations [not including minor ailments] undertaken by the children and to advise the other parent of the identity and contact details of the treating professional.

Both parents are restrained, without further order of the court or the written consent of the other parent, from referring either child for assessment or consultation to a counsellor or any like professional for the purpose of obtaining a report in anticipated Court proceedings or that is likely to result in such a report.

10.

Unless it is agreed to the contrary in writing, neither parent is to enrol the children in any activity or make any commitment for the children’s attendance at any time they are scheduled to be in the other parent’s care and each parent is to advise the other of the enrolment or involvement of the children at any sporting or religious or extra-curricular activity and the schedule of their attendance as well as reasonable advance notice of special events which the other parent will be at liberty to attend.

11.

Each parent is restrained and an injunction is granted restraining him/her from denigrating the other parent or any partner of the other to the children or in their presence.

12.

Each parent is to keep the other informed of his/her address and telephone number and maintain a landline telephone service for communication by the children with the other parent.

13.

The parents are to make such arrangements as are necessary as soon as practicable to have the children attend upon the independent children’s lawyer for the purpose of discussing this decision.

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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