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ZEEHAN & ARCHIBALD

ZEEHAN & ARCHIBALD

Case [2011] FamCA 534 16 December 2011

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FAMILY COURT OF AUSTRALIA

ZEEHAN & ARCHIBALD

[2011] FamCA 534

FAMILY LAW – CHILDREN – Magellan matter - allegations of sexual abuse – whether child is at unacceptable risk of sexual abuse in the unsupervised care of his father – whether child ought to be permitted to relocate with mother – finding of unacceptable risk

FAMILY LAW – CHILDREN - parental responsibility-presumption of equal shared parental responsibility does not apply due to unacceptable risk – also not in the best interests of the child – mother to have sole parental responsibility for the child.

Family Law Act 1975 (Cth) ss 60B(1), 60CC and s 61DA

Evidence Act 1995 (Cth) s 128

Hartford and Ansilda [2009] FamCA 23
Hermiro & Simla [2009] FamCA 181
Tasmania v McLean (2008) TASSC 57
Heath & Hemming (No 2) [2011] FamCA 749

APPLICANT:

Ms Zeehan

RESPONDENT:

Mr Archibald

INDEPENDENT CHILDREN’S LAWYER:

Mrs Kate Mooney

FILE NUMBER:

HBC

476

2010

DATE DELIVERED:

16 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

25, 26, 27, 28 & 31 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Melissa Eddington

SOLICITOR FOR THE APPLICANT:

Murdoch Clarke

SOLICITOR FOR THE RESPONDENT:

Self represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Kate Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

Ms Zeehan (“the mother”) shall have the sole and exclusive parental responsibility for V Zeehan-Archibald born April 2007 (“the child”). The mother shall promptly inform the father of details of any major decisions she proposes to make or makes in relation to the child.
The mother be permitted to relocate the primary residence of the child from Tasmania to New South Wales.
BY CONSENT the child shall live with the mother.
The child spend supervised time with Mr Archibald (“the father”) three (3) times per year at the G Children’s Contact Service in New South Wales and that the mother pay the father’s reasonable return airfare from Hobart to Sydney and the fees of the Contact Centre associated with such visits, on such dates reasonably requested by the father and suitable to the child.
The father shall spend such other supervised time with the child as agreed between the parties with such time to be at the expense of the father.
BY CONSENT the father’s contravention application filed 2 August 2011 be dismissed.

IT IS DIRECTED

The following documents be forwarded to the Secretary, Department of Health and Human Services Tasmania by the Independent Children’s Lawyer, within twenty one (21) days of the date of this order:-
(a)a copy of these orders;
(b)a copy of the reasons for these orders are based;
(c)a copy of the report of the affidavit of Dr Z filed 15 July 2007;
(d)a copy of the affidavit of Ms E filed 5 May 2011;
(e)a copy of the report of Ms M dated 2 September 2010;
(f)a copy of the report of Mr P dated 27 June 2002;
(g)a copy of the report of Mr…

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 ZEEHAN & ARCHIBALD

Details

AGLC: ZEEHAN & ARCHIBALD [2011] FamCA 534
Case: [2011] FamCA 534
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the matter of *Zeehan & Archibald*, Benjamin J of the Family Court of Australia considered allegations of sexual abuse concerning the child, V Zeehan-Archibald. The dispute centred on whether the child was at an unacceptable risk of sexual abuse in the unsupervised care of his father, Mr Archibald, and whether the child ought to be permitted to relocate with his mother, Ms Zeehan, from Tasmania to New South Wales.

The court was required to determine whether the presumption of equal shared parental responsibility applied, given the allegations of unacceptable risk. Furthermore, the court had to consider whether it was in the best interests of the child for the mother to have sole parental responsibility and to relocate with the child.

Benjamin J found that the child was at an unacceptable risk of sexual abuse in the unsupervised care of the father, which meant the presumption of equal shared parental responsibility did not apply. The court concluded that it was not in the best interests of the child for the father to have shared parental responsibility. Consequently, the mother was granted sole and exclusive parental responsibility for the child and permitted to relocate the child's primary residence to New South Wales. The child was ordered to live with the mother, and spend supervised time with the father three times per year in New South Wales, with the mother to cover the father's return airfare and contact centre fees for these visits. By consent, the father's contravention application was dismissed, and all outstanding parenting applications were dismissed. The court also directed that various documents, including reports and affidavits, be forwarded to the Secretary of the Department of Health and Human Services Tasmania.

Orders

Orders of the court

Ms Zeehan (“the mother”) shall have the sole and exclusive parental responsibility for V Zeehan-Archibald born April 2007 (“the child”). The mother shall promptly inform the father of details of any major decisions she proposes to make or makes in relation to the child.

The mother be permitted to relocate the primary residence of the child from Tasmania to New South Wales.

BY CONSENT the child shall live with the mother.

The child spend supervised time with Mr Archibald (“the father”) three (3) times per year at the G Children’s Contact Service in New South Wales and that the mother pay the father’s reasonable return airfare from Hobart to Sydney and the fees of the Contact Centre associated with such visits, on such dates reasonably requested by the father and suitable to the child.

The father shall spend such other supervised time with the child as agreed between the parties with such time to be at the expense of the father.

BY CONSENT the father’s contravention application filed 2 August 2011 be dismissed.

IT IS DIRECTED

The following documents be forwarded to the Secretary, Department of Health and Human Services Tasmania by the Independent Children’s Lawyer, within twenty one (21) days of the date of this order:-

(a) a copy of these orders;

(b) a copy of the reasons for these orders are based;

(d) a copy of the affidavit of Ms E filed 5 May 2011;

(e) a copy of the report of Ms M dated 2 September 2010;

(f) a copy of the report of Mr P dated 27 June 2002;

(g) a copy of the report of Mr P dated 1 July 2010;

(h) a copy of the report of Dr W dated 17 June 2010;

(i) a copy of the report of Dr O dated 20 July 2010;

(j) a copy of the reports from the Hobart Children’s Contact Service dated December 2010 and April 2011;

(k) a copy of the Family Report dated 12 November 2010; and

(l) a copy of Child Dispute Conference Memorandum dated 25 August 2011.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

All outstanding applications regarding parenting are dismissed.

10.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same.

IT IS CERTIFIED

11.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

ZEEHAN & ARCHIBALD [2011] FamCA 534

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Cases cited in this decision · 12 of 12 shown

Heath & Hemming (No 2)
[2011] FamCA 749

…Hartford and Ansilda [2009] FamCA 23 Hermiro & Simla [2009] FamCA 181 Tasmania v McLean (2008) TASSC 57 Heath & Hemming (No 2) [2011] FamCA 749…
Hemiro & Sinla
[2009] FamCA 181

…Hartford and Ansilda [2009] FamCA 23 Hermiro & Simla [2009] FamCA 181 Tasmania v McLean (2008) TASSC 57 Heath & Hemming (No 2) [2011] FamCA 749…
Hartford & Ansilda
[2009] FamCA 23 Para 1

…As to alleged sexual abuse, Brown J summarised the principles in such determinations in Hartford and Ansilda [2009] FamCA 23, where she said:- 19 The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear…
Tasmania v McLean
[2008] TASSC 57 Para 15

…asked whether there was a real possibility of concoction. She submitted that it had to be more than speculative chance and relied upon Porter J in Tasmania v McLean (2008) TASSC 57 at paragraph 46:- 46. In Tasmania v S [2004] TASSC 84, in a passage approved by the Full Court in L v Tasmania (2005) 16 Tas R 381, Underwood…
Tasmania v S
[2004] TASSC 84 Para 15

…that it had to be more than speculative chance and relied upon Porter J in Tasmania v McLean (2008) TASSC 57 at paragraph 46:- 46. In Tasmania v S [2004] TASSC 84, in a passage approved by the Full Court in L v Tasmania (2005) 16 Tas R 381, Underwood J (as he then was) said: "12 Concoction includes not only cases…
P v R
[2002] TASSC 61 Para 15

…bly concocted her evidence after becoming aware of the account of another complainant. See BRS v R [1997] HCA 47 ; (1997) 191 CLR 275 at 301; P v R [2002] TASSC 61. In Hickey v R (2002) 136 A Crim R 151, the Full Court of the Supreme Court of Western Australia, at 155, approved an earlier statement of the Court th…
BRS v The Queen
[1997] HCA 47 Para 15

…also those cases where one complainant has possibly concocted her evidence after becoming aware of the account of another complainant. See BRS v R [1997] HCA 47 ; (1997) 191 CLR 275 at 301; P v R [2002] TASSC 61. In Hickey v R (2002) 136 A Crim R 151, the Full Court of the Supreme Court of Western Australia, at…
R v Robertson
[1997] QCA 63 Para 15

…f render their evidence inadmissible if there is no other factual foundation upon which a reasonable possibility of concoction may be based.' 13 In R v Robertson (1997) 91 A Crim R 388, Ambrose J said at 409: 'In the majority judgment in Hoch at p297 it is observed that in some cases a judge who must rule upon admissib…
M v M
[1988] HCA 68 Para 1

…uch determinations in Hartford and Ansilda [2009] FamCA 23, where she said:- 19 The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings f…
J v Lieschke
[1987] HCA 4 Para 1

…to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to th…
(1951) AC 352
(1951) AC 352 Para 1

…or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make su…
McKee v McKee
(1957) AC 352 Para 1

…gs for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
128 3 mentions (from Para 6)
Family Law Act 1975 (Cth)
60B(1), 60CC 3 mentions (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)