ACCOLA & MADDIN - [2020] FCCA 3643

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACCOLA & MADDIN

[2020] FCCA 3643

Catchwords:
FAMILY LAW – Parenting – interim hearing – children aged 14 and 10 years – final parenting orders made in September 2016 for the children to live with the father in Adelaide and spend time with the mother in Queensland – mother has retained the children – mother alleges youngest child has been exposed to psychological harm in the father’s care – father seeks delivery up – assessment of risk – best interests.

Legislation:
Family Law Act 1975 (Cth), ss.4, 60CC, 60(CA)

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

Morgan & Miles (2007) FLC 93-343
Slater & Light [2013] FamCAFC 4

Applicant:

MR ACCOLA

Respondent:

MS MADDIN

File Number:

ADC 1214 of 2016

Judgment of:

Judge Brown

Hearing date:

10 June 2020

Date of Last Submission:

10 June 2020

Delivered at:

Adelaide

Delivered on:

10 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Belchamber Legal

Counsel for the Respondent:

Mr Wright

Solicitors for the Respondent:

Hannay Lawyers

ORDERS

The mother deliver up the children X born in 2009 and Y born in 2005 (‘the children’) to the father at the Suburb G Police Station at a time to be agreed between the parties but failing agreement, at 9.00am on Saturday 13 June 2020.
The father is to have telephone communication with the children pending his collection of them each night at 6.00pm Queensland time.
If the mother is in Adelaide she spend time with the children on dates and times to be agreed between the parties.
The mother have telephone/facetime communication with the children pursuant to the 30 September 2016 orders.
The mid-year school holiday time pursuant to the 30 September 2016 orders is suspended.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 18 August 2020 at 9.30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
The parties’ legal representatives be at liberty to inspect and copy all documents produced to date pursuant to subpoena by Dr D and H School (SAVE & EXCEPT for those marked confidential).
In the event any party (or the Independent Children’s Lawyer) in these proceedings seeks to rely upon any material produced pursuant to subpoena then such documents shall be put before the Court by way of affidavit to be filed and served as follows:
(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and
(b)annexing such material as is considered relevant, with
(c)the affidavit to be paginated, indexed and exhibits tagged.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent…

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 ACCOLA & MADDIN

Details

AGLC: ACCOLA & MADDIN [2020] FCCA 3643
Case: [2020] FCCA 3643
Decision Date: 10 June 2020

CaseChat Overview and Summary

The matter before Judge Brown concerned an application by the father for orders regarding the children X and Y. The dispute centred on the arrangements for the children's living arrangements and communication with both parents.

The court was required to determine the primary care arrangements for the children, including the physical handover of the children to the father. It also needed to consider the father's entitlement to telephone communication with the children and the mother's ability to spend time with them. Furthermore, the court addressed the suspension of existing mid-year school holiday arrangements and the necessity for the parties to engage in family dispute resolution. The appointment of an Independent Children's Lawyer was also a key issue.

In reaching its decision, the court made orders for the mother to deliver the children to the father at a specified location and time, with provisions for telephone communication for both parents. The mid-year school holiday arrangements were suspended, and the parties were directed to attend a family dispute resolution conference. Crucially, an Independent Children's Lawyer was appointed to represent the children's interests, with directions for the parties to provide relevant documents to facilitate this appointment. The matter was adjourned for further directions and potential final hearing allocation.

Orders

Orders of the court

The mother deliver up the children X born in 2009 and Y born in 2005 (‘the children’) to the father at the Suburb G Police Station at a time to be agreed between the parties but failing agreement, at 9.00am on Saturday 13 June 2020.

The father is to have telephone communication with the children pending his collection of them each night at 6.00pm Queensland time.

If the mother is in Adelaide she spend time with the children on dates and times to be agreed between the parties.

The mother have telephone/facetime communication with the children pursuant to the 30 September 2016 orders.

The mid-year school holiday time pursuant to the 30 September 2016 orders is suspended.

Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 18 August 2020 at 9.30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

The parties’ legal representatives be at liberty to inspect and copy all documents produced to date pursuant to subpoena by Dr D and H School (SAVE & EXCEPT for those marked confidential).

In the event any party (or the Independent Children’s Lawyer) in these proceedings seeks to rely upon any material produced pursuant to subpoena then such documents shall be put before the Court by way of affidavit to be filed and served as follows:

(a) setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b) annexing such material as is considered relevant, with

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2009 and Y born in 2005 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

10.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

11.

Further consideration of the matter is adjourned to 26 August 2020 at 9.30am for directions and, if necessary, to allocate a date for final hearing.

12.

Liberty to apply.

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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