Beaumont and Timms (No.2) - [2018] FCCA 2889

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAUMONT & TIMMS (No.2)

[2018] FCCA 2889

Catchwords:
FAMILY LAW – Final parenting orders – father’s non-compliance with court orders and non-attendance for family report interviews – risk to child if father spends time with child – father’s concerning presentation.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60DD(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D.

Cases cited:

Waterford & Waterford [2013] FamCA 33

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Stott & Holgar and Anor [2017] FamCAFC 152
A v A[1998] FamCA 25
Amador & Amador[2009] FamCAFC 196
B and B (1993) FLC 92-357
N and S and the Separate Representative (1996) FLC 92-655
Napier & Hepburn[2006] FamCA 1316
Potter & Potter [2007] FamCA 350
Johnson & Page[2007] FamCA 1235

Applicant:

MS BEAUMONT

Respondent:

MR TIMMS

File Number:

MLC 5548 of 2012

Judgment of:

Judge Harland

Hearing date:

27 September 2018

Date of Last Submission:

27 September 2018

Delivered at:

Melbourne

Delivered on:

12 October 2018

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms Glaister

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

All previous parenting orders be discharged.
The mother have sole parental responsibility for the child of the relationship [X] born 2005 (“[X]”).
The father’s face to face time with [X] be reserved.
The Independent Children’s Lawyer be discharged.
All outstanding applications be otherwise dismissed, and the case removed from the list of cases awaiting determination of the Court.

NOTATION
(A)The Family Consultant, Ms B, notes at [50] of the Family Report dated 13 August 2018 that Ms Beaumont has acted protectively and consistently places [X]’s interests at the centre of decision making.
(B)The Independent Children’s Lawyer considers Ms Beaumont will facilitate [X] to have face to face time with the father in the future, initially supervised either by a professional supervisor or supervisory service, in the event the father demonstrates to the mother:
a.Compliance with the treatment regime recommended by his treating mental health professional or psychiatrist;
b.Compliance with prescribed medication;
c.Stability of his mental health; and
d.The mother considers [X] would be comfortable to spend time with her father.

IT IS NOTED that publication of this judgment under the pseudonym Beaumont & Timms (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5548 of 2012

MS BEAUMONT

Applicant

And

MR TIMMS

Respondent

REASONS FOR JUDGMENT

This is a very sad case as the father clearly loves his daughter [X] and she loves him. Unfortunately, the only safe outcome for [X], given the current circumstances, is that the father spend no time with [X] and does not communicate with [X] or the mother.
After hearing submissions from all parties, I indicated that I would make the orders sought by the Independent Children’s Lawyer (“the ICL”) and would deliver written reasons, as given the father’s presentation, it…

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 Beaumont and Timms (No.2)

Details

AGLC: Beaumont and Timms (No.2) [2018] FCCA 2889
Case: [2018] FCCA 2889
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the matter of *Beaumont and Timms (No.2)*, Judge Harland of the Family Court of Australia considered a dispute concerning parenting orders for the child of the relationship, [X]. The proceedings involved the mother, Ms Beaumont, and the father, Mr Timms.

The central legal issues before the Court were whether to discharge existing parenting orders and, if so, what new orders should be made regarding the parental responsibility for [X] and the father's contact with the child. The Court also considered the role of the Independent Children's Lawyer and the dismissal of outstanding applications.

Judge Harland's reasoning, as indicated by the notations, focused on the mother's consistent protective approach and her placement of [X]'s interests at the forefront of decision-making, as noted by the Family Consultant. The Independent Children's Lawyer's view was that the mother would facilitate future face-to-face time between [X] and the father, contingent upon the father demonstrating compliance with his mental health treatment, medication, and achieving mental health stability, and further, that [X] would be comfortable spending time with him.

Consequently, the Court ordered the discharge of all previous parenting orders. The mother was granted sole parental responsibility for [X]. The father's face-to-face time with [X] was reserved, pending the conditions outlined by the Independent Children's Lawyer. The Independent Children's Lawyer was discharged, all outstanding applications were dismissed, and the case was removed from the Court's list.

Orders

Orders of the court

All previous parenting orders be discharged.

The mother have sole parental responsibility for the child of the relationship [X] born 2005 (“[X]”).

The father’s face to face time with [X] be reserved.

The Independent Children’s Lawyer be discharged.

All outstanding applications be otherwise dismissed, and the case removed from the list of cases awaiting determination of the Court.

NOTATION

(A) The Family Consultant, Ms B, notes at [50] of the Family Report dated 13 August 2018 that Ms Beaumont has acted protectively and consistently places [X]’s interests at the centre of decision making.

(B) The Independent Children’s Lawyer considers Ms Beaumont will facilitate [X] to have face to face time with the father in the future, initially supervised either by a professional supervisor or supervisory service, in the event the father demonstrates to the mother:

a. Compliance with the treatment regime recommended by his treating mental health professional or psychiatrist;

b. Compliance with prescribed medication;

c. Stability of his mental health; and

d. The mother considers [X] would be comfortable to spend time with her father.

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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