ANSON & LACE - [2018] FamCA 125

FAMILY COURT OF AUSTRALIA

ANSON & LACE

[2018] FamCA 125

FAMILY LAW – CHILDREN – Interim Proceedings – with whom a child spends time – consideration of allegations of sexual abuse and family violence – assessment of risk – best interests decision – interim orders made for supervised time.

Family Law Act 1975 (Cth)

Marvel v Marvel [2010] FamCAFC 101
Jopson & Lilwall (No. 2) [2016] FamCAFC 262
Banks & Banks [2015] FamCAFC 36

APPLICANT:

Ms Anson

RESPONDENT:

Mr Lace

FILE NUMBER:

LEC

2017

DATE DELIVERED:

18 January 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

18 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

GJ Legal Solicitors

SOLICITOR FOR THE RESPONDENT:

Claire Newton Family Lawyer

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

That the child, B born … 2012 (“the child”) live with the mother.
That the mother maintain the child’s enrolment and ensure the child’s attendance at C School.
That the child shall spend time with the father supervised at D Children’s Contact Centre at E Town (“the Centre”) on such dates and at such times as can be accommodated by the Centre.
That the parents shall not denigrate each other or their families and not speak about the allegations raised and the issues in these Court proceedings, in the presence or hearing of the child.
That the parents attend and participate in any parenting program as recommended by the Centre.
That the Independent Children’s Lawyer be at liberty to liaise with the Centre to discuss the progress of the child’s time with the father.
That the Independent Children’s Lawyer be at liberty to issue a subpoena to the Centre.
That pursuant to s.121 of the Family Law Act1975 the parties be at liberty to publish and provide to their treating health professional/s a copy of the family report prepared by Ms F dated 7 December 2017 and the psychiatric report prepared by Dr G dated 13 December 2017
That within seven (7) days of the date of these Orders the mother file with the Court the evidence of her results of the hair follicle testing undertaken by her.
That noting the Independent Children’s Lawyer on next occasion hopes to be in a position to provide to the Court information from the Centre, seven (7) days prior to the next Court event both parties shall file and serve a short Affidavit setting out:
(a)how, from their perspective, the current parenting arrangements have progressed; and
(b)any proposed variation to this current Order and proposal for the next six (6) months.
That these proceedings be listed before the docket Registrar on a date to be fixed, noting that such date ought be within six (6) months.
That the Independent Children’s Lawyer be at liberty to apply.

IT IS NOTED:

A.That the Court would have no difficulties with the parties and their legal representatives appearing by telephone on the next occasion unless ordered to be physically present by a Registrar.

Note:…

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.

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Details

AGLC: ANSON & LACE [2018] FamCA 125
Case: [2018] FamCA 125
Decision Date: 18 January 2018

CaseChat Overview and Summary

This matter concerned parenting orders made by Baumann J in relation to a child, B, born in 2012. The proceedings involved the child's parents, referred to as the mother and the father.

The court was required to determine the living arrangements for the child, the nature and extent of the child's time with each parent, and measures to ensure the child's welfare and protection from parental conflict. Specific issues included the child's schooling, the father's contact with the child, prohibitions on parental denigration, and the involvement of the Independent Children's Lawyer. The court also considered the admissibility and dissemination of expert reports and the need for further evidence regarding hair follicle testing.

Baumann J made orders that the child live with the mother and attend a specific school. The father was to spend supervised time with the child at a designated contact centre, with the dates and times to be accommodated by the centre. Both parents were ordered not to denigrate each other or discuss the proceedings in the child's presence, and to participate in a parenting program. The Independent Children's Lawyer was granted liberty to liaise with the contact centre and issue subpoenas. The parties were permitted to provide specific family and psychiatric reports to their treating health professionals. The mother was ordered to file evidence of her hair follicle testing results, and both parents were to file affidavits detailing the progress of current arrangements and any proposed variations for the next six months. The proceedings were listed for further mention before the docket Registrar within six months.

Orders

Orders of the court

That the child, B born … 2012 (“the child”) live with the mother.

That the mother maintain the child’s enrolment and ensure the child’s attendance at C School.

That the child shall spend time with the father supervised at D Children’s Contact Centre at E Town (“the Centre”) on such dates and at such times as can be accommodated by the Centre.

That the parents shall not denigrate each other or their families and not speak about the allegations raised and the issues in these Court proceedings, in the presence or hearing of the child.

That the parents attend and participate in any parenting program as recommended by the Centre.

That the Independent Children’s Lawyer be at liberty to liaise with the Centre to discuss the progress of the child’s time with the father.

That the Independent Children’s Lawyer be at liberty to issue a subpoena to the Centre.

That pursuant to s.121 of the Family Law Act 1975 the parties be at liberty to publish and provide to their treating health professional/s a copy of the family report prepared by Ms F dated 7 December 2017 and the psychiatric report prepared by Dr G dated 13 December 2017

That within seven (7) days of the date of these Orders the mother file with the Court the evidence of her results of the hair follicle testing undertaken by her.

10.

That noting the Independent Children’s Lawyer on next occasion hopes to be in a position to provide to the Court information from the Centre, seven (7) days prior to the next Court event both parties shall file and serve a short Affidavit setting out:

(a) how, from their perspective, the current parenting arrangements have progressed; and

(b) any proposed variation to this current Order and proposal for the next six (6) months.

11.

That these proceedings be listed before the docket Registrar on a date to be fixed, noting that such date ought be within six (6) months.

12.

That the Independent Children’s Lawyer be at 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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