ADAMI & ADAMI - [2015] FCCA 1256

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMI & ADAMI

[2015] FCCA 1256

Catchwords:
FAMILY LAW – Interim parenting – future care arrangements – mother seeks that the father have supervised time with child – allegations of unacceptable risk – proposals for formal and informal supervised time considered – basis for supervision – bases for the mother’s concerns suggested to warrant supervision substantially predating separation and the mother’s provision of unsupervised time with the father – adequacy of informal supervision – allegations of mutual drug use – concession by father of drug use and production of string of urinalysis reports showing no detectable substance.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60I, 61C, 65DAA(5), Part II
Federal Circuit Court Rules 2001

Evidence Act 1995, s.131, Part II: Division 2, Division 3

Bail Act 2013

Goode & Goode (2006) FLC 93-286
Deacon & Castle [2013] FCCA 691
Johnson & Page [2007] FamCA 1235
M & M [1988] HCA 68
Briginshaw v Briginshaw (1938) 60 CLR 336
A v A (1976) V.R. 298
B & B (1986) FLC 91-758
Leveque v Leveque (1983) 54 B.C.L.R 164
Re G (a minor) (1987) 1 W.L.R. 1461
W & W (abuse allegations: unacceptable risk) (2005) FLC 93-235
N & S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
S & S [1994] NZFLR 657
M v Y [1994] NZFLR 1
Potter v Potter (2007) FamCA 350
B & B (1993) FLC 92-357
Burton & Churchin and Anor [2013] FamCAFC 180
Grange & Gardiner [2011] FMCAfam 1313

Applicant:

MR ADAMI

Respondent:

MS ADAMI

File Number:

PAC 1110 of 2015

Judgment of:

Judge Harman

Hearing date:

4 May 2015

Date of Last Submission:

4 May 2015

Delivered at:

Parramatta

Delivered on:

4 May 2015

REPRESENTATION

Counsel for the Applicant:

Ms Obradovic

Solicitors for the Applicant:

Bennelong Legal

Solicitors for the Respondent:

Mr Wahhab of York Law Family Law Specialists

ORDERS

Pursuant to section 61C of the Family Law Act 1975 each parent shall, at such times as she is in their care, have parental responsibility for the child, X born (omitted) 2013.
X shall live with her mother.
X shall spend time with her father from 9.00am until 5.00pm each Saturday.
For the purpose of implementing the above time, the father shall cause one or other of his parents or his sister, Ms A, to collect X from the home of the mother at the commencement of each period and the mother shall collect X from the home of the paternal grandparents at the conclusion of each period.
The father’s time with X shall occur at the home of the paternal grandparents (unless agreed between the parties to the contrary) and with one or other of his parents and his sister present at all times.
IT IS NOTED that the above Orders (as regards the venue of time and presence of other persons) are made without prejudice to any application that the parents or either of them should seek to agitate on future occasions…

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 ADAMI & ADAMI

Details

AGLC: Adami and Adami [2015] FCCA 1256
Case: [2015] FCCA 1256
Decision Date: 4 May 2015

CaseChat Overview and Summary

In the matter of ADAMI & ADAMI, heard by Judge Harman, the dispute concerned parental responsibility and living arrangements for the child, X. The mother sought orders regarding X's care, while the father objected to the admission of certain correspondence.

The court was required to determine the appropriate orders for parental responsibility, where X would live, and the nature and extent of X's time with the father. A secondary issue arose concerning the admissibility of correspondence between the parties' legal representatives, which was marked "without prejudice save as to costs," under section 131 of the Evidence Act 1995.

Judge Harman reasoned that the correspondence, being communications made in connection with an attempt to negotiate a settlement, was inadmissible under section 131(1)(b) of the Evidence Act 1995, as no exceptions to this rule applied. The court then made orders pursuant to section 61C of the Family Law Act 1975, granting each parent parental responsibility for X when X is in their care. X was ordered to live with her mother and spend time with her father each Saturday from 9:00 am to 5:00 pm. The father was directed to arrange for one of his parents or his sister to collect X and return her, and X's time with the father was to occur at the paternal grandparents' home with one of them or his sister present at all times.

Orders

Orders of the court

Pursuant to section 61C of the Family Law Act 1975 each parent shall, at such times as she is in their care, have parental responsibility for the child, X born (omitted) 2013.

X shall live with her mother.

X shall spend time with her father from 9.00am until 5.00pm each Saturday.

For the purpose of implementing the above time, the father shall cause one or other of his parents or his sister, Ms A, to collect X from the home of the mother at the commencement of each period and the mother shall collect X from the home of the paternal grandparents at the conclusion of each period.

The father’s time with X shall occur at the home of the paternal grandparents (unless agreed between the parties to the contrary) and with one or other of his parents and his sister present at all times.

Background

Background to the litigation

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Evidence

Evidence Before The Court

An evidential issue suggested to be of some moment is also raised although, ultimately not dispositive of any issue in the proceedings. Annexed to the mother’s material are two pieces of correspondence between attorneys or former attorneys of the parties. Each piece of correspondence is headed “without prejudice save as to costs”. The father objects to the admission of that material asserting that it falls foul of section 131 of the Evidence Act 1995, which I incorporate herein:Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. (2) Subsection (1) does not apply if: (a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or (b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or (d) the communication or document included a statement to the effect that it was not to be treated as confidential; or (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or (f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or (g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or (h) the communication or document is relevant to determining liability for costs; or (i) making the communication, or preparing the document, affects a right of a person; or (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power. Section 131(1)(b) makes clear that evidence is not to be adduced of any communication that is made, “...in connection with an attempt to negotiate a settlement of the dispute”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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