Burwell & Jarvis (No 2) - [2023] FedCFamC1F 453

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Burwell & Jarvis (No 2) [2023] FedCFamC1F 453

File number(s): CAC 505 of 2023

Judgment of: GILL J

Date of judgment: 2 June 2023

Catchwords: FAMILY LAW - PARENTING ORDERS – Interim proceedings – Potential risk – Supervision by family member – Engagement with welfare agency

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 65DAA, 68B

Cases cited:
Eaby & Speelman (2015) FLC 93-654

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Goode & Goode (2006) FLC 93-286

Isles & Nelissen [2022] FedCFamC1A 97

Salah & Salah [2016] FamCAFC 100

SS v AH [2010] FamCAFC 13

Division: Division 1 First Instance

Number of paragraphs: 58

Date of hearing: 17 and 19 May 2023 and 1 June 2023

Place: Canberra

Solicitor for the Applicant: Mrs Lloyd, Jeanine Lloyd & Associates

Solicitor for the Respondents: Ms Cruise, Legal Aid

Solicitor for the Second Respondent: Litigant in Person

Solicitor for the Intervener: Mr Gough, Director-General Community Services Directorate

Solicitor for the Independent Children's Lawyer: Ms Dillon-Smith, Dillon-Smith Lawyers
ORDERS

CAC 505 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BURWELL

Applicant

AND:
MR JARVIS

First Respondent

MS GODWELL

Second Respondent

DIRECTOR-GENERAL OF THE COMMUNITY SERVICES DIRECTORATE

Intervener

INDEPENDENT CHILDREN'S LAWYER

order made by:

GILL J

DATE OF ORDER:

2 JUNE 2023

THE COURT ORDERS THAT:
1.The orders of 12 April 2023 as made by a Senior Judicial Registrar are discharged.
2.Ms Burwell, the mother, born 1988 has sole parental responsibility for the children:
(a)X born 2012;
(b)Y born 2016; and,
(c)Z born 2017.

3.The children live with the mother.
4.The mother is to liaise with the case manager for Child and Youth Protection Services (“CYPS”) by keeping such informed of, and seeking advice as to anticipated arrangements for the children.
5.The mother is authorised by these orders to obtain respite care for the child X as she requires and she shall liaise with CYPS in respect of any such arrangements or services she requires to support X for as long as she considers this is necessary.
6.The mother is permitted to allow X to stay with the paternal grandmother for respite with such arrangements to be made in consultation with CYPS and only on the conditions as otherwise set out in these orders.
7.The children Y and Z spend supervised time with Mr Jarvis, the father, at E Support Services or F Support Services as agreed.
8.Other than with members of the paternal grandmother’s household or a professional supervisor, the father shall not cause or allow another adult to be present during his time with the children unless he has first obtained agreement in writing from the other parties.
9.The father shall spend time with X each Saturday from 9 am to 4 pm supervised by the paternal grandmother.
10.When the father spends time with X the paternal grandmother shall supervise such time and shall:
(a)Refuse the father’s time with X if she…

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 Burwell & Jarvis (No 2)

Details

AGLC: Burwell & Jarvis (No 2) [2023] FedCFamC1F 453
Case: [2023] FedCFamC1F 453
Decision Date

CaseChat Overview and Summary

Burwell & Jarvis (No 2) involves the legal dispute between the parties regarding the conditions for a paternal grandmother to act as a supervisor for the child X. The case was heard in a family law court in Australia. The primary dispute concerns the specific terms and conditions under which the paternal grandmother can act as a supervisor for X, balancing the interests of the child with the rights and responsibilities of the parties involved.

The court was tasked with determining the appropriate legal framework for the grandmother's role as a supervisor. The issues included the extent of the court's jurisdiction to impose conditions on the grandmother's supervisory role and the suitability of the proposed conditions, particularly those suggested by the Independent Children's Lawyer (ICL) and the Department of Communities and Justice (D-G). The court had to weigh the proposed undertakings against the overarching goal of ensuring the welfare and safety of X.

The court found that the undertakings proposed by the ICL were largely acceptable, given their alignment with the parties' interests and the child's welfare. The court was cautious about imposing additional conditions proposed by the D-G, as it did not appear that these would be beneficial to X. The court concluded that the existing framework, modified to reflect the agreed terms, was sufficient. The previous consent orders were discharged, with certain reinstated to maintain clarity and ensure the ongoing protection of the child's interests.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to the undertakings proposed for the paternal grandmother as supervisor, rather than undertakings such matters will be dealt with by injunction, but only to the extent of those proposed by the ICL, it not being apparent that the additional proposed conditions by the D-G will be beneficial to X.CONCLUSION Orders will be made generally in terms of those proposed by the ICL, as largely accepted by the parties, with appropriate modifications. The previous consent orders will be discharged, with those reinstated that should remain operative in order to provide clarity.

Ratio Decidendi

Legal Principle Established

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File number(s):	CAC 505 of 2023
Judgment of:	GILL J
Date of judgment:	2 June 2023
Catchwords:	FAMILY LAW - PARENTING ORDERS – Interim proceedings – Potential risk – Supervision by family member – Engagement with welfare agency
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 65DAA, 68B
Cases cited:	Eaby & Speelman (2015) FLC 93-654 Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Goode & Goode (2006) FLC 93-286 Isles & Nelissen [2022] FedCFamC1A 97 Salah & Salah [2016] FamCAFC 100 SS v AH [2010] FamCAFC 13
Division:	Division 1 First Instance
Number of paragraphs:	58
Date of hearing:	17 and 19 May 2023 and 1 June 2023
Place:	Canberra
Solicitor for the Applicant:	Mrs Lloyd, Jeanine Lloyd & Associates
Solicitor for the Respondents:	Ms Cruise, Legal Aid
Solicitor for the Second Respondent:	Litigant in Person
Solicitor for the Intervener:	Mr Gough, Director-General Community Services Directorate
Solicitor for the Independent Children's Lawyer:	Ms Dillon-Smith, Dillon-Smith Lawyers

CAC 505 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BURWELL Applicant
AND:	MR JARVIS First Respondent MS GODWELL Second Respondent
DIRECTOR-GENERAL OF THE COMMUNITY SERVICES DIRECTORATE Intervener INDEPENDENT CHILDREN'S LAWYER

order made by:	GILL J
DATE OF ORDER:	2 JUNE 2023