ATKINSON & ATKINSON - [2013] FCCA 2439

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATKINSON & ATKINSON

[2013] FCCA 2439

Catchwords:
FAMILY LAW – Children – interim parenting arrangements for three month old baby – unacceptable risk – departmental involvement – allegations of family violence.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CG, 60I, 61C, 61DA, 65DAA(5), 68B, 69ZA, 69ZB, 69ZN, 69ZT

Evidence Act 1995, s.81
Legal Profession Act2004 (NSW)

Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
Deacon & Castle [2013] FCCA 691
Green & Graham [2011] FamCAFC 248

Applicant:

MS ATKINSON

Respondent:

MR ATKINSON

File Number:

PAC 4343 of 2013

Judgment of:

Judge Harman

Hearing date:

1 November 2013

Date of Last Submission:

1 November 2013

Delivered at:

Albury

Delivered on:

1 November 2013

REPRESENTATION

Solicitors for the Applicant:

Ms Fioni of Legal Aid NSW Parramatta Family Law

Counsel for the Respondent:

Ms Dart

Solicitors for the Respondent:

Matthews Folbigg Pty Ltd

Solicitors for the Independent Children's Lawyer:

Mr Meehan of Jpm Legal

ORDERS

Discharge all prior orders with respect to the child X born (omitted) 2013.
X shall live with his Mother.
X shall spend time with his Father each Tuesday, Wednesday, Thursday and Sunday between 9.30am and 2.30pm.
For the purpose of changeover the Mother shall deliver X to the home of Ms F at the commencement of time and collect X at that address at the conclusion of time.
The Father shall collect X from the home of Ms F at the commencement of each period and provided that:
(a)The father shall be and is hereby restrained from being at, upon or within 100m of the home of Ms F between 9.15am and 9.45am and 2.15pm and 2.45pm each Tuesday, Wednesday, Thursday and Sunday; and
(b)The Father shall thus collect the child from his sister in law Ms F at or no earlier than 9.45am or 2.15pm.
Pursuant to section 68B of the Family Law Act 1975 the parents shall be and are hereby restrained from contacting or communicating with each other save to strictly relate to the welfare of X and comprising matters of his health and not otherwise.
Each parent shall keep the other advised at all times of any significant illness or injury suffered by X and to allow each parent to be advised of treatment of X.
The proceedings are adjourned to 9.30am on 6 February 2014 for further directions.
Note the parties propose to consider whether a Part 15 Report is required and if so seek to agree upon an available author, funding and timeframe for completion of such a report so that orders can be submitted to the Court and failing that on the next occasion a section 62G Family Report will be ordered.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Reserve the costs of the Independent Children’s Lawyer of and…

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 ATKINSON & ATKINSON

Details

AGLC: Atkinson and Atkinson [2013] FCCA 2439
Case: [2013] FCCA 2439
Decision Date: 1 November 2013

CaseChat Overview and Summary

In ATKINSON & ATKINSON, heard by Judge Harman, the dispute concerned parenting orders for a child, X. The court was required to determine the living arrangements and time spent between X and his parents, as well as establish communication protocols and restrictions between the parents.

The court's reasoning focused on ensuring X's welfare and safety. To achieve this, orders were made for X to live with his Mother and spend specific, limited time with his Father. Crucially, to manage the handover process and minimise direct contact between the parents, the Father was restrained from attending within 100 metres of the Mother's nominated handover location during specific times, with handovers to occur via an intermediary, Ms F. Furthermore, pursuant to section 68B of the Family Law Act 1975, the parents were restrained from contacting or communicating with each other except in relation to X's health and welfare.

The court adjourned the proceedings for further directions, noting the parties' intention to consider a Part 15 Report or, failing agreement, a section 62G Family Report. Leave was granted to the Independent Children’s Lawyer to issue multiple subpoenas. The court also highlighted the enforcement provisions of section 68C of the Family Law Act 1975, which authorise police to arrest a parent in breach of the communication order without further warrant.

Orders

Orders of the court

Discharge all prior orders with respect to the child X born (omitted) 2013.

X shall live with his Mother.

X shall spend time with his Father each Tuesday, Wednesday, Thursday and Sunday between 9.30am and 2.30pm.

For the purpose of changeover the Mother shall deliver X to the home of Ms F at the commencement of time and collect X at that address at the conclusion of time.

The Father shall collect X from the home of Ms F at the commencement of each period and provided that:

(a) The father shall be and is hereby restrained from being at, upon or within 100m of the home of Ms F between 9.15am and 9.45am and 2.15pm and 2.45pm each Tuesday, Wednesday, Thursday and Sunday; and

(b) The Father shall thus collect the child from his sister in law Ms F at or no earlier than 9.45am or 2.15pm.

Pursuant to section 68B of the Family Law Act 1975 the parents shall be and are hereby restrained from contacting or communicating with each other save to strictly relate to the welfare of X and comprising matters of his health and not otherwise.

Each parent shall keep the other advised at all times of any significant illness or injury suffered by X and to allow each parent to be advised of treatment of X.

The proceedings are adjourned to 9.30am on 6 February 2014 for further directions.

Note the parties propose to consider whether a Part 15 Report is required and if so seek to agree upon an available author, funding and timeframe for completion of such a report so that orders can be submitted to the Court and failing that on the next occasion a section 62G Family Report will be ordered.

10.

Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.

11.

Reserve the costs of the Independent Children’s Lawyer of and incidental to the interim hearing today.

THE COURT NOTES THAT:

12.

The above order pursuant to section 68B is an order to which the provisions of section 68C of the Family Law Act 1975 apply and thus any Police Officer of the Australian Federal Police or any State or Territory Police Officer is satisfied that either parent has acted in breach of any order they shall be authorised to arrest that parent without further order or warrant and to then detain him/her until he/she can be brought before this Court and be dealt with under the provisions of the Family Law Act.

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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