Bradley and Van Veen - [2014] FamCA 15

FAMILY COURT OF AUSTRALIA

BRADLEY & VAN VEEN

[2014] FamCA 15

FAMILY LAW – CHILDREN – spend time with – remove supervision

Family Law Act 1975 (Cth) – s 60CC
APPLICANT:	Mr Bradley

RESPONDENT:

Ms Van Veen

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

4961

2007

DATE DELIVERED:

10 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

EX TEMPORE JUDGMENT OF:

Berman J

HEARING DATE:

10 January 2014

REPRESENTATION

THE APPLICANT:	In Person
SOLICITOR FOR THE RESPONDENT:	Gilbert & Partners

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

The order made on 25 September 2012 be discharged.
The father spend time with the child S born … October 2004 on Saturday 1 February 2014 from 10:00am to 6:00pm and each sixth (6^th) Saturday thereafter.
Handover shall occur outside of the Suburb B Police Station or such other place as the parties may agree.
Pursuant to s 65DA(2) and s 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fat Sheet attached hereto and these particulars are included in these orders.
All applications for final orders be adjourned for hearing before the Honourable Justice Berman at 10:00am on Monday 2 June 2014 as a five (5) day matter and that the evidence-in-chief of all witnesses be given by affidavit.
The matter be listed for mention before the Honourable Justice Berman at 9:15am on Monday 26 May 2014.
By 4:00pm on Friday 7 March 2014 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence-in-chief of all witnesses, including the applicant, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief).
The applicant pay all setting down and trial fees by 4:00pm on Friday
2 May 2014.
By 4:00pm on Thursday 24 April 2014 the respondent file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence-in-chief of all witnesses, including the respondent, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief).
By 4:00pm on Friday 2 May 2014 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
By 4:00pm on Friday 2 May 2014 the Independent Children’s Lawyer file and serve upon all other parties any affidavit material relied upon.
No party file any further material other than as provided by these orders without leave of the Court.
Prior to the commencement of the trial the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.
Pursuant…

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 Bradley and Van Veen

Details

AGLC: Bradley and Van Veen [2014] FamCA 15
Case: [2014] FamCA 15
Decision Date: 10 January 2014

CaseChat Overview and Summary

The case of *Bradley and Van Veen* concerned an application relating to the parenting of a child, S, born in October 2004. The proceedings involved the father and the mother, with an Independent Children's Lawyer also participating. The court was required to make orders regarding the child's time with the father and to set a timetable for the progression of the final hearing of the parenting dispute.

The central legal issues before the court were the arrangements for the child's time with the father, and the procedural steps necessary to bring the matter to a final hearing. This included determining the specific orders to be made for future contact, the method of handover, and the evidence to be presented by each party. The court also had to consider the preparation of a Family Assessment Report and the potential consequences of non-compliance with court orders.

The court ordered that the father spend time with the child S on a specific Saturday in February 2014 and every sixth Saturday thereafter, with handover to occur at a designated location or as otherwise agreed. The court also issued detailed directions for the filing and service of amended applications and affidavits of evidence-in-chief by both the applicant and respondent, specifying deadlines for these actions. Furthermore, the court directed the parties and the child to attend upon a family consultant for the preparation of a Family Assessment Report, with a completion deadline. The court also outlined the consequences for failing to comply with these orders, including the possibility of the matter being taken out of the list or proceeding on an undefended basis. The final hearing was adjourned for a five-day period commencing in June 2014.

Orders

Orders of the court

The order made on 25 September 2012 be discharged.

The father spend time with the child S born … October 2004 on Saturday 1 February 2014 from 10:00am to 6:00pm and each sixth (6th) Saturday thereafter.

Handover shall occur outside of the Suburb B Police Station or such other place as the parties may agree.

Pursuant to s 65DA(2) and s 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fat Sheet attached hereto and these particulars are included in these orders.

All applications for final orders be adjourned for hearing before the Honourable Justice Berman at 10:00am on Monday 2 June 2014 as a five (5) day matter and that the evidence-in-chief of all witnesses be given by affidavit.

The matter be listed for mention before the Honourable Justice Berman at 9:15am on Monday 26 May 2014.

By 4:00pm on Friday 7 March 2014 the applicant file and serve upon all other parties:

(a) an amended application setting out with precision the orders to be sought;

(b) the affidavits of evidence-in-chief of all witnesses, including the applicant, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief).

The applicant pay all setting down and trial fees by 4:00pm on Friday

2 May 2014.

By 4:00pm on Thursday 24 April 2014 the respondent file and serve upon all other parties:

(a) an amended application setting out with precision the orders to be sought;

(b) the affidavits of evidence-in-chief of all witnesses, including the respondent, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief).

10.

By 4:00pm on Friday 2 May 2014 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

11.

By 4:00pm on Friday 2 May 2014 the Independent Children’s Lawyer file and serve upon all other parties any affidavit material relied upon.

12.

No party file any further material other than as provided by these orders without leave of the Court.

13.

Prior to the commencement of the trial the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

14.

Pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purposes of the preparation of a Family Assessment Report with such Report to be completed and released by Friday 9 May 2014.

15.

The family consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

16.

All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file and the registrar shall be satisfied as to the relevance of the requested subpoenae upon the certification of the party’s lawyer.

17.

All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

18.

Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

(a) the Court may relist the matter requiring the parties to justify why it should not be taken out of the list; and

(b) the party who has complied may immediately thereafter file an Application in a Case supported by an affidavit seeking for the matter to proceed on an undefended basis.

19.

The practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4:00pm on Wednesday 28 May 2014 the following:

(a) a concise set of orders to be sought if different from those already filed;

(b) a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

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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