BLACKETT & LEICESTER - [2014] FCCA 1619

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLACKETT & LEICESTER

[2014] FCCA 1619

Catchwords:
FAMILY LAW – Children – Interim Orders – Mother deceased – Application of Goode & Goode when competing application for residence between maternal grandparents and father – whether equal shared parental responsibility appropriate.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 61DB, 61C, 64C, 65C

Goode & Goode [2006] FamCA 1346; (2007) 36 FamLR 422
Cowling v Cowling [1998] FamCA 19; (1998) 22 FamLR 776
Potts & Bims [2007] FamCA 394
Aldridge v Keaton (2010) 42 FamLR 369
Rice v Miller (1993) 16 FamLR 970
Re Evelyn (1998) 23 FamLR 73
Oldfield & Anor & Oldfield & Anor [2012] FMCAfam 22

Applicants:

MS BLACKETT AND
MR BLACKETT

Respondent:

MR LEICESTER

File Number:

BRC 6033 of 2014

Judgment of:

Judge Lapthorn

Hearing date:

17 July 2014

Date of Last Submission:

17 July 2014

Delivered at:

Toowoomba

Orders Delivered on:

18 July 2014

Reasons Delivered on:

24 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Sorensen

Solicitors for the Applicant:

MacDonald Law

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

McMillian Kelly Thomas Lawyers

ORDERS UNTIL FURTHER ORDER

That the applicant maternal grandparents and the respondent father have equal shared parental responsibility for the child X born (omitted) 2004.
That the child live with the maternal grandparents.
That the child spend time with the father each alternate weekend from after school Friday to before school Monday.
That the child spend from 5.00pm the Saturday before Father’s Day to 5.00pm Sunday (Father’s Day) if not already a weekend where he is spending time with the father pursuant to these orders.
That the child spend half the school holidays with the father as agreed between the parties, but failing agreement the second half.
That the child have telephone and/or skype communication with each party at any reasonable time.
That for the purpose of changeover when it is not a school day, the father is to collect the child from the maternal grandparent’s business at the commencement of time and the grandparents to collect the child from the father’s residence at the conclusion of time.
That parties do all things necessary to facilitate the child attending grief and family counselling with such counsellor as the parties may agree and that the parties engage with the counsellor as the counsellor may request or recommend from time to time.
That the child X born (omitted) 2004 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.
That the Independent Children’s Lawyer be at liberty to apply.
That the parties do all things necessary to obtain a family report from a suitably qualified family report writer.
That the family report writer is…

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

AGLC: Blackett and Leicester [2014] FCCA 1619
Case: [2014] FCCA 1619
Decision Date: 24 July 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia at Brisbane, Judge Lapthorn considered an application concerning the child X, born in 2004. The dispute arose following the death of the child's mother, with competing applications for residence between the child's father and the maternal grandparents.

The court was required to determine whether equal shared parental responsibility was appropriate in these circumstances, and to make interim orders regarding the child's living arrangements, time with each party, and other related matters. The court also considered the application of the principles established in *Goode & Goode* in the context of these competing applications.

The court ordered that the applicant maternal grandparents and the respondent father have equal shared parental responsibility for the child. The child was ordered to live with the maternal grandparents, with specific provisions for the child to spend time with the father each alternate weekend and half of the school holidays. The court also mandated that the parties facilitate grief and family counselling for the child and engage with the counsellor as recommended. Furthermore, the court ordered that the child be represented by an Independent Children’s Lawyer and that a family report be prepared, with the report writer to consider various factors including those outlined in sections 60CC and 65DAA of the *Family Law Act 1975*, the child's developmental and emotional state, his relationships, and his wishes. The matter was adjourned for a final hearing.

Orders

Orders of the court

ORDERS UNTIL FURTHER ORDER

1. That the applicant maternal grandparents and the respondent father have equal shared parental responsibility for the child X born (omitted) 2004.

2. That the child live with the maternal grandparents.

3. That the child spend time with the father each alternate weekend from after school Friday to before school Monday.

4. That the child spend from 5.00pm the Saturday before Father’s Day to 5.00pm Sunday (Father’s Day) if not already a weekend where he is spending time with the father pursuant to these orders.

5. That the child spend half the school holidays with the father as agreed between the parties, but failing agreement the second half.

6. That the child have telephone and/or skype communication with each party at any reasonable time. 7. That for the purpose of changeover when it is not a school day, the father is to collect the child from the maternal grandparent’s business at the commencement of time and the grandparents to collect the child from the father’s residence at the conclusion of time.

8. That parties do all things necessary to facilitate the child attending grief and family counselling with such counsellor as the parties may agree and that the parties engage with the counsellor as the counsellor may request or recommend from time to time.

9. That the child X born (omitted) 2004 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.

10. That the Independent Children’s Lawyer be at liberty to apply.

11. That the parties do all things necessary to obtain a family report from a suitably qualified family report writer.

12. That the family report writer is requested to

(a) Consider the factors in s.60CC & s.65DAA of the Family Law Act 1975;

(b) Profile the father and the maternal grandparents and assess their ability to communicate and their interactions;

(d) Assess the relationship the child has to the father, his sisters and maternal grandparents and any other significant persons.

(e) Assess the wishes of the child should he express any and the circumstances surrounding those wishes

(f) Consider the child’s sense of identity given his mother’s death and that he is currently living with the maternal grandparents and is not living with the father

(g) Consider the proposals of each party for the child’s future;

13. That the family report writer has leave to inspect all documents produced under subpoena.

14. That the parties be responsible equally for payment of the cost of preparation of the family report.

15. That the parties have liberty to apply regarding the appointment of the family report writer and/or the timeliness of the production of the family report.

16. That the matter be adjourned to 10.00am on 18 November 2014 in the Federal Circuit Court of Australia at Brisbane for final hearing allocating 2 days.

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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