Backland and Seville - [2013] FCCA 924

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACKLAND & SEVILLE

[2013] FCCA 924

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – substantial and significant time – whether an interim change of residence is in the child’s best interests – whether child’s time with mother should be reduced – supervision – whether child’s time with mother should be supervised – whether unacceptable risk of harm.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61DA, 61DB, 62G, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MS BACKLAND

Respondent:

MR SEVILLE

File Number:

SYC 1218 of 2013

Judgment of:

Judge Scarlett

Hearing date:

15 July 2013

Date of Last Submission:

15 July 2013

Delivered at:

Sydney

Delivered on:

31 July 2013

REPRESENTATION

Solicitor for the Applicant:

Mr Mokhtar

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Ms Graves

Solicitors for the Respondent:

V.L. Macri Lawyers

ORDERS

UNTIL FURTHER ORDER:

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born (omitted) 2009.
The child X is to live with the Father.
The child X is to spend time with the Mother as follows:
(a)From 5:00pm on Friday until 5:00pm on Monday in each week;
(b)From 9:00am to 5:00pm on the mother’s birthday being 14 November 2013; and
(c)From 9:00am to 5:00pm on Christmas Eve 24 December 2013;
Notwithstanding the provisions of Order (3) above, the child X is to spend time with the Father:
(a)From 9:00am to 5:00pm on Father’s Day being Sunday 1 September 2013; and
(b)From 1:00pm to 5:00pm on the child’s birthday being Saturday 7 September 2013.
The parties are restrained by injunction from consuming alcohol or administering to themselves any illicit drug at any time when the child is in their care according to these Orders or for twelve (12) hours beforehand.
The parties are restrained from criticising or denigrating each other in the presence or hearing of the child.
The parties are to attend upon a Family Consultant for interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 at such times as the Family Consultant shall appoint.

IT IS NOTED that publication of this judgment under the pseudonym Backland & Seville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1218 of 2013

MS BACKLAND

Applicant

And

MR SEVILLE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for interim parenting Orders. It concerns the parties’ son X who was born on (omitted) 2009 and is therefore three years and ten months old. X has been living with his father, the Respondent, since March 2012 and spending time with his mother.
Although the Family Consultant Memorandum recording the Child Dispute Conference attended by the parties on Wednesday 5^th June suggests that the…

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 Backland and Seville

Details

AGLC: BACKLAND & SEVILLE [2013] FCCA 924
Case: [2013] FCCA 924
Decision Date: 31 July 2013

CaseChat Overview and Summary

In the matter of *Backland and Seville*, heard by Judge Scarlett, the dispute concerned parenting arrangements for the child X. The orders made by the court addressed issues of parental responsibility, the child's living arrangements, and the time the child would spend with each parent.

The court was required to determine the most appropriate orders for the child X, considering the welfare and best interests of the child. This involved establishing a framework for shared parental responsibility, defining the primary residence of the child, and specifying the time each parent would spend with X. The court also considered the need for specific injunctions to protect the child's well-being during periods of care.

Judge Scarlett ordered that the Applicant Mother and Respondent Father were to have equal shared parental responsibility for the child X. The child was to live with the Father, with specific provisions for the child to spend time with the Mother on weekends and on particular dates. The court also made orders restraining both parties from consuming alcohol or illicit drugs when the child was in their care or for twelve hours beforehand, and from criticising or denigrating each other in the child's presence. Furthermore, the parties were ordered to attend interviews for the preparation of a Family Report.

Orders

Orders of the court

UNTIL FURTHER ORDER:

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born (omitted) 2009.

The child X is to live with the Father.

The child X is to spend time with the Mother as follows:

(a) From 5:00pm on Friday until 5:00pm on Monday in each week;

(b) From 9:00am to 5:00pm on the mother’s birthday being 14 November 2013; and

Notwithstanding the provisions of Order (3) above, the child X is to spend time with the Father:

(a) From 9:00am to 5:00pm on Father’s Day being Sunday 1 September 2013; and

(b) From 1:00pm to 5:00pm on the child’s birthday being Saturday 7 September 2013.

The parties are restrained by injunction from consuming alcohol or administering to themselves any illicit drug at any time when the child is in their care according to these Orders or for twelve (12) hours beforehand.

The parties are restrained from criticising or denigrating each other in the presence or hearing of the child.

The parties are to attend upon a Family Consultant for interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 at such times as the Family Consultant shall appoint.

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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