ACCOLA & MADDIN (No.2) - [2020] FCCA 3644

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACCOLA & MADDIN (No.2)

[2020] FCCA 3644

Catchwords:
FAMILY LAW – Parenting – children aged 14 and 10 years - interim order made on 10 June 2020 for the mother to deliver up both children to the father – only the eldest child was delivered up – whether the delivery up order should be discharged in relation to the youngest child – assessment of risk of psychological harm to the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CC(3)(f), 60CC(3)(i), 68LA

Cases cited:

AMS v AIF; AIF v AMS (1999) FLC 92-852

M & S (2007) FLC 93-313

Rice & Asplund (1979) FLC 90-725

Slater & Light [2013] FamCAFC 4

SS & AH [2010] FamCAFC 13

Applicant:

MR ACCOLA

Respondent:

MS MADDIN

File Number:

ADC 1214 of 2016

Judgment of:

Judge Brown

Hearing date:

17 June 2020

Date of Last Submission:

17 June 2020

Delivered at:

Adelaide

Delivered on:

18 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Belchamber Legal

Counsel for the Respondent:

Mr Hanlon

Solicitors for the Respondent:

Hannay Lawyers

Solicitors for the Independent Children’s Lawyer

Ms Tydeman of the Legal Services Commission

ORDERS

The child X born in 2009 be delivered up to the father at the Suburb G Police Station at 12:30pm this day, 18 June 2020.
The father make any application for costs within twenty-eight (28) days of today’s date.
The mother respond to any application for costs within a further twenty-eight (28) days of that.
Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection (Families SA) are ordered to provide to the court the following documents:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
Further consideration of the matter is adjourned to 26 August 2020 at 9:30am.
The application filed 15 June 2020 be dismissed.
Liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Accola & Maddin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1214 of 2016

MR ACCOLA

Applicant

And

MS MADDIN

Respondent

REASONS FOR JUDGMENT

These reasons relate to a child, X, who was born in 2009 and, particularly, whether the court should make a further order directing her mother to deliver her to her father to give effect to an order made on 10 June 2020.
X has a sister, Y, who was born in 2005. The parties to these proceedings are Y and X's parents – their mother, Ms Maddin; and their father, Mr Accola.
Pursuant to an order, incidentally, which was made by me in this court on 19 August 2016, the two children are…

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 (No.2)

Details

AGLC: ACCOLA & MADDIN (No.2) [2020] FCCA 3644
Case: [2020] FCCA 3644
Decision Date: 18 June 2020

CaseChat Overview and Summary

In the matter of ACCOLA & MADDIN (No.2), heard before Judge Brown, the dispute concerned the welfare and location of a child, X, born in 2009. The court was required to make orders regarding the child's delivery, the potential for costs applications, and the disclosure of documents by the Department for Child Protection (Families SA).

The central legal issues before the court were the immediate care arrangements for the child X, the procedural aspects of any future costs applications, and the extent to which the Department for Child Protection should disclose documents relevant to suspected abuse or family violence concerning the child. The court also considered the dismissal of an application filed on 15 June 2020.

Judge Brown ordered that the child X be delivered to the father at a specified location and time on 18 June 2020. The court also directed the Department for Child Protection to provide specific documents relating to any notifications, assessments, investigations, findings, outcomes, or commissioned reports concerning suspected abuse or family violence affecting the child, pursuant to section 69ZW of the Family Law Act. Further consideration of the matter was adjourned, and the application filed on 15 June 2020 was dismissed. Liberty to apply was granted.

Orders

Orders of the court

The child X born in 2009 be delivered up to the father at the Suburb G Police Station at 12:30pm this day, 18 June 2020.

The father make any application for costs within twenty-eight (28) days of today’s date.

The mother respond to any application for costs within a further twenty-eight (28) days of that.

Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection (Families SA) are ordered to provide to the court the following documents:

(a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

(b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

Further consideration of the matter is adjourned to 26 August 2020 at 9:30am.

The application filed 15 June 2020 be dismissed.

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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