Atkins and Caldwell and Burns - [2010] FMCAfam 940

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ATKINS & CALDWELL & BURNS

[2010] FMCAfam 940

FAMILY LAW – Children – young parents – child lives with Maternal Grandmother who is primary carer – multi-cultural environment for child – Aboriginal heritage – allegations of abuse – consideration of “unacceptable risk”.

Family Law Act1975, Part VII, ss.60B(1) (b), (2), (3), 60CA, 60CC(1), (a), (2) (b), (3) (b) (i), (ii), (c), (h), (i), (4), (4A), 61DA (1), 65DAA(1) (a) (b) (2), (3), (5) (b), (c)
Evidence Act 1995, s.140

A v A [1976] VR 298
B v B (Access) [1986] FLC ¶ 91-758
Briginshaw v Briginshaw (1938) 60 CLR 336
Capp & Gates [2010] FMCAfam 756
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Goode v Goode (2007) 36 Fam LR 422
In re G (a minor) [1987] 1 WLR 1461
Johnson & Page (2007) FLC ¶93-344
Leveque v Leveque (1983) 54 BCLR 164
Luther & Luther [2010] FMCAfam 761
M v M (1988) 166 CLR 69
Marriage of M (1987) 11 Fam LR 765
Mazorski v Albright (2008) 37 Fam LR 518
McCall & Clarke (2009) 41 Fam LR 483
Moose & Moose (2008) FLC ¶93-375
MRR v GR (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC¶93-424
N v S (1995) 19 Fam LR 837
Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401
Potter v Potter (2007) 37 Fam LR 208
SPS & PLS (2008) FLC¶93-363

R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Journal of Family Law 276-282
J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295

Applicant:

MS ATKINS

First Respondent:

MR CALDWELL

Second Respondent:

MS BURNS

File Number:

CAC 689 of 2008

Judgment of:

Neville FM

Hearing date:

27 July 2010

Date of Last Submission:

27 July 2010

Delivered at:

Canberra

Delivered on:

6 August 2010

REPRESENTATION

The Applicant Grandmother:

In person

Counsel for the Respondent Husband

Solicitors for the Respondent Husband:

Ms A Tonkin

Strong Law Pty Ltd
Canberra

Solicitor-Advocate for the Respondent Mother

Solicitors for the Respondent Mother

Ms P Lyndon

Watts McCray McGuinness Eley
Canberra

Solicitor-Advocate for the Independent Children’s Lawyer

Solicitors for the Independent Children’s Lawyer

Mr D Ridge

Barker & Barker
Canberra

ORDERS

[X], born in 2007, live with her Father as follows:
(a)Until 15^th November 2010:
(i)from 10.30 a.m. on each Tuesday until 3.30 p.m. on Thursday; and
(ii)from 10.30 a.m. on each Saturday until 10.30 a.m. on Sunday;
(b)From 15^th November 2010 until she commences school:
(i)from 10.30 a.m. on each Tuesday until 3.30 p.m. on Friday; and
(ii)on each alternate weekend from 10.30 a.m. on Saturday until 3.30 p.m. on Sunday;
(c)Upon [X] commencing school:
(i)[X] spend…

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.

Keep reading for free

Create a free CaseChat account to read Atkins and Caldwell and Burns and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCAfam 940
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Atkins and Caldwell and Burns involves a dispute regarding the care arrangements for a young child, [X]. The primary issue is whether the child should spend more time with her father, Mr Caldwell, given the allegations of abuse against him and the conflict between the parties. The court must decide whether the proposed increase in time with her father is in the child's best interests, considering the nature and level of evidence regarding the allegations of abuse and the potential impact of the conflict on the child. The court also examines the reports from various experts and the recommendations of the independent children's lawyer. Based on the evidence and the reports, the court determines that there is no unacceptable risk in relation to the child spending time with her father and that it is in her best interests to have increased time with him, with certain conditions in place to minimize the impact of the conflict.

The court orders that the child will spend additional time with her father, with changeovers taking place at a recognized contact center. The court also requests that the independent children's lawyer make inquiries regarding relevant aboriginal counseling and therapeutic services to assist the parties in addressing the conflict and its potential impact on the child. The court emphasizes the importance of maintaining a meaningful relationship between the child and both parents and the need for the parties to work together for the child's best interests.

Orders