BECKER & MOSS - [2017] FCCA 407

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKER & MOSS

[2017] FCCA 407

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654

Banks & Banks [2015] FamCAFC 36

Applicant:

MR BECKER

Respondent:

MS MOSS

File Number:

PAC 2438 of 2016

Judgment of:

Judge Newbrun

Hearing date:

3 February 2017

Date of Last Submission:

3 February 2017

Delivered at:

Parramatta

Delivered on:

7 March 2017

REPRESENTATION

Solicitors for the Applicant:

Peter Dawson & Associates

Solicitors for the Respondent:

Women's Legal Service NSW

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Parramatta Family Law

ORDERS PENDING FURTHER ORDER

The mother have sole parental responsibility for the children in relation to major decisions affecting their care, welfare and development.
The children live with the mother.
The children spend time with the father supervised by the Penrith Contact Centre run by Relationships Australia and, subject to the availability of such centre, they spend such time with the father at least each alternate Saturday for at least 3 hours.
Liberty to the Independent Children’s Lawyer to relist the proceedings on 7 days’ notice.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 16 January 2018.
The Family Report to deal with the following matters:
(a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);
(c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:
(i)either of the parents: or
(ii)any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.
(d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.
(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.
(f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.
The report writer has leave to read any document produced on subpoena…

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.

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Details

Case: [2017] FCCA 407
Decision Date: 7 March 2017

CaseChat Overview and Summary

Becker & Moss concerned a dispute between two parties, Becker and Moss, heard before Newbrun J in the Supreme Court of New South Wales. The precise nature of the dispute is not detailed in the provided text, but it involved a legal matter requiring judicial determination.

The central legal issue before the court was to determine the rights and obligations of the parties in relation to the subject matter of their dispute. This would have involved an examination of the relevant legal principles and any applicable legislation or contractual terms governing their relationship.

Newbrun J's reasoning and the legal principles applied would have been directed towards resolving the dispute based on the evidence presented and the applicable law. The judgment would have articulated the court's findings on the contested issues and the legal basis for those findings.

The final orders or outcome of the case would have reflected the court's determination of the dispute, potentially involving declarations of rights, orders for specific performance, or monetary judgments, depending on the nature of the claim.

Orders