Beckham and Franz - [2017] FCCA 798

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKHAM & FRANZ

[2017] FCCA 798

Catchwords:
FAMILY LAW – Interim arrangements for child of three years to spend time with her father – parties have poor and mistrustful relationship – allegations of sexual abuse arise following period of professionally supervised time – assessment of risk – is risk of abuse unacceptable for court to accept – should conditions be applied – matters to be considered – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4(1), 60B, 60CA, 60CC, 61DA

Cases cited:

Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant:

MR BECKHAM

Respondent:

MS FRANZ

File Number:

ADC 572 of 2016

Judgment of:

Judge Brown

Hearing date:

12 April 2017

Date of Last Submission:

12 April 2017

Delivered at:

Adelaide

Delivered on:

26 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr Carlin

Solicitors for the Applicant:

Carlin Lawyers

Counsel for the Respondent:

Ms Hirst

Solicitors for the Respondent:

Adelaide Family Lawyers

ORDERS

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator 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 18 August 2017.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)a Children’s Court;

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 Beckham and Franz

Details

AGLC: Beckham and Franz [2017] FCCA 798
Case: [2017] FCCA 798
Decision Date: 26 April 2017

CaseChat Overview and Summary

The parties in this matter, Beckham and Franz, brought their dispute concerning their child before Judge Brown of the Federal Circuit Court of Australia. The proceedings involved an application for a family report to assist the Court in determining matters related to the child's welfare and best interests.

The primary legal issues before the Court were the terms and scope of the family report to be prepared, including the individuals to be interviewed, the observations to be made, and the specific sections of the *Family Law Act 1975* that the report should address. Additionally, the Court was required to determine the conditions under which the report could be disseminated to third parties and to make interim orders regarding the child's time with the father and the arrangements for handovers.

Judge Brown ordered that the parties and the child attend an assessment with a Regulation 7 practitioner for the preparation of a family report. This report was to include interviews with the parties, the child, and relevant family members, observed interactions between the child and the parties, consideration of the child's views and factors affecting their weight, and the matters set out in sections 60CC, 61DA, and 65DAA of the *Family Law Act 1975*. The Court also stipulated that solicitors were to forward all filed documents to the report writer and that the report, once provided to the Court, would be shared with the parties, their legal representatives, and any Independent Children's Lawyer. The Court further outlined specific conditions for the release of the report to external bodies such as Children's Courts or child protection authorities, subject to objection and noting the potential evidentiary status of the report and the prohibitions on public dissemination under section 121 of the *Family Law Act 1975*. Interim orders were made for the father to spend supervised time with the child each Sunday, with handovers to be facilitated by the paternal and maternal grandmothers at a specified police station. The matter was adjourned for further consideration.

Orders

Orders of the court

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator 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 18 August 2017.

The family assessment to deal with the following matters:

(a) to include interviews with the parties, the child and relevant family members;

(b) observed interaction between the child and the parties;

(c) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(d) the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

(e) any other matters that the family assessor considers important to the welfare or best interests of the said child.

The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

(a)a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference

NOTING:

A. At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

This matter be listed for final hearing before Judge Brown on 15 & 16 May 2018 at 10.00am NOTING two (2) days hearing time has been allocated and will not be exceeded without leave of the Court.

Until further or other order:

The father spend time with the child X born (omitted) 2014 from 11.00am until 4.30pm on each Sunday commencing 30 April 2017 with the time to be subject to the direct supervision of the paternal grandmother, Ms M.

The maternal and paternal grandmothers (Ms S and Ms M) are to facilitate handovers of the child at the (omitted) Police Station.

Further consideration of the matter be adjourned to 13 September 2017 at 9.30am and the mention date of 19 May 2017 be vacated.

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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