BARROS & MACKAY - [2019] FCCA 446

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARROS & MACKAY

[2019] FCCA 446

Catchwords:
FAMILY LAW – Interim Application – unacceptable risk – allegations of assault on 8 and 6 year old children – allegations of emotional abuse – allegations that the assertions of assault are deliberately false and a part of a course of alienation by one parent of the children from the other parent – nature of interim hearings.

Legislation:

Family Law Act 1975 (Cth), ss.60, CA, CC(2), (3)

Evidence Act 1995 (Cth)

Cases cited:

Goode v Goode [2006] FamCA 1346

PST & CPR [2006] FMCAfam 36

M & M (1998) FLC 91-979

A & A (1998) FLC 92-800

Napier & Hepburn (2006) FLC 93-303

Harridge & Anor & Harridge [2010] FamCA 445

Applicant:

MS BARROS

Respondent:

MR MACKAY

File Number:

ADC 1658 of 2014

Judgment of:

Judge McGuire

Hearing date:

21 February 2019

Date of Last Submission:

21 February 2019

Delivered at:

Launceston

Delivered on:

1 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Dillon

Solicitors for the Applicant:

Stephen Gibbons Lawyers

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Norman Waterhouse Lawyers

Counsel for the Independent Children's Lawyer:

Mr Croft

Solicitors for the Independent Children's Lawyer:

J Richard Croft

ORDERS

That the Interim Orders of Judge Kelly made 18 December 2018 in respect of the children [X] born … 2010 (aged 8 years) and [Y] born … 2012 (aged 6 years) (“the children”) be discharged.
That the Parenting Orders of 11 September 2014 in respect of [X] and [Y] remain in full force and effect.
That until further Order the mother be and is hereby restrained from leaving the children [X] and [Y] or either of them in the care of or alone in the presence of Mr A.
That each of the parents by themselves or their agents be and are hereby restrained from discussing any aspect of these proceedings with the children [X] and [Y] or either of them and from giving or permitting the children or either of them access to copies of any of the material on the Court file in this matter.
That the Independent Children’s Lawyer meet with the children as soon as practicable so as to explain to them the fact of and the nature of these Orders.
That pursuant to Section 62G(2) of The Family Law Act 1975 a Family Report be prepared by a family consultant nominated by the Manager, Child Dispute Services of this Court (“the family consultant”), and for that purpose the parties are to comply with all reasonable requests of the family consultant, the Manager, Child Dispute Services or their staff in relation to attendance at appointments and the provision of information in relation to but not limited to the following:
(a)The nature of the relationship of the child/ren with each of his/her parents;
(b)Any issues of family violence which impact on the child/ren’s living and parenting arrangements;
(c)The child/ren’s views, if any, as to their parenting and living arrangements and the maturity 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 BARROS & MACKAY

Details

AGLC: Barros and Mackay [2019] FCCA 446
Case: [2019] FCCA 446
Decision Date: 1 March 2019

CaseChat Overview and Summary

This matter concerned an interim application in the Federal Circuit Court of Australia, presided over by Judge McGuire. The dispute involved allegations of assault and emotional abuse against two children, aged eight and six. Counter-allegations were made that these assertions of assault were deliberately false and part of a parental alienation strategy. The court was required to consider the nature of interim hearings in such circumstances.

The court was tasked with determining the appropriate interim parenting orders in light of the serious and conflicting allegations. Specifically, the court had to assess whether the existing parenting orders should be discharged, what new orders were necessary to protect the children's welfare, and how to manage the proceedings to ensure a fair and thorough investigation of the claims. The court also needed to consider the role of an Independent Children's Lawyer and the preparation of a Family Report.

Judge McGuire discharged the interim orders made by Judge Kelly on 18 December 2018, reinstating the parenting orders of 11 September 2014. The mother was restrained from leaving the children in the care of or alone with a Mr A. Both parents were prohibited from discussing the proceedings with the children or providing them with access to court documents. An Independent Children's Lawyer was appointed to explain the orders to the children. Crucially, a Family Report was ordered, with the family consultant authorised to investigate various aspects of the children's welfare, including their relationships with parents, family violence, their views, potential manipulation, and parental capacity. The family consultant was also granted access to relevant departmental and police records. The substantive application was listed for a two-day trial, with strict timelines set for the filing of affidavit material and the submission of final orders, document lists, and summaries of argument.

Orders

Orders of the court

That the Interim Orders of Judge Kelly made 18 December 2018 in respect of the children [X] born … 2010 (aged 8 years) and [Y] born … 2012 (aged 6 years) (“the children”) be discharged.

That the Parenting Orders of 11 September 2014 in respect of [X] and [Y] remain in full force and effect.

That until further Order the mother be and is hereby restrained from leaving the children [X] and [Y] or either of them in the care of or alone in the presence of Mr A.

That each of the parents by themselves or their agents be and are hereby restrained from discussing any aspect of these proceedings with the children [X] and [Y] or either of them and from giving or permitting the children or either of them access to copies of any of the material on the Court file in this matter.

That the Independent Children’s Lawyer meet with the children as soon as practicable so as to explain to them the fact of and the nature of these Orders.

That pursuant to Section 62G(2) of The Family Law Act 1975 a Family Report be prepared by a family consultant nominated by the Manager, Child Dispute Services of this Court (“the family consultant”), and for that purpose the parties are to comply with all reasonable requests of the family consultant, the Manager, Child Dispute Services or their staff in relation to attendance at appointments and the provision of information in relation to but not limited to the following:

(a) The nature of the relationship of the child/ren with each of his/her parents;

(b) Any issues of family violence which impact on the child/ren’s living and parenting arrangements;

(c) The child/ren’s views, if any, as to their parenting and living arrangements and the maturity and rationality of those views;

(d) The reporter’s views as to whether or not the children or either of them have been manipulated or threatened by either of the parents or any other relevant person in respect of their living and parenting arrangements;

(e) The capacity of each of the parents to attend to the child/ren’s physical, intellectual and emotional needs; and

(f) Any other factor that the Family Reporter thinks relevant.

That these Orders authorise the family consultant to speak to and have access to any relevant materials from the Department of Child Protection or South Australian police in respect of notifications made in relation to the children.

That the family consultant has leave to inspect the Court file and all documents produced pursuant to subpoena, provided that those documents have been released for inspection.

That the substantive Application is listed for trial in the Federal Circuit Court at Adelaide on a date and time to be advised (noting a time estimate of 2 days).

10.

That the parties make file and serve all affidavit material upon which they intend to rely not later than 14 days prior to the trial date and unless the Court otherwise grants leave, the parties are to each rely upon only one trial affidavit and only one affidavit from each witness.

11.

That the party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

12.

That within 7 working days prior to the trial the solicitor for the parties each file and serve a document setting out:

(a) the orders being sought

(b) a list of documents to be relied upon; and

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.