C & C - [2006] FamCA 701

[2006] FamCA 701

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE NO. DGF 1621 of 2002

IN THE MATTER OF:

MR C (Applicant)

and

MRS C (Wife)

and

CHILD REPRESENTATIVE

EX TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing: 26 June 2006
Date of Judgment: 26 June 2006

Appearances:

Mr McCarthy, solicitor, instructed by McCarthy Hoey, Solicitors, on behalf of the Applicant (husband)

The Respondent (wife) in person

Mr Edney, solicitor, instructed by C E Family Lawyers, as Child Representative

This matter comes before me following a long history of case management. The central issue this day however is to review interim orders for contact that were made by me in January 2006 for contact between the husband and the three children E who was born in February 1994, N who was born in April 1996, and S who was born in February 1998.
It appears to me that the progress of the contested applications has been a very helpful one for the parties through the process of case management and with the assistance of the court counsellors. In particular, the recent report from Ms H dated 2 May 2006, following my orders on 27 January 2006, has been central to the events this day. The purpose of that report was primarily to assess the issue of contact and consider future proposals including, but not limited to overnight contact. It is clear that both the husband and the wife were in dispute about arrangements for contact and remained so even at the meetings they had with Ms H.
I do not propose to go through the background in any length, save to say that I have been assisted with the report of Ms H and the Case Outline presented by the Child Representative. Mr McCarthy appears for the husband, the wife continues to appear in person and Mr Edney continues to appear as Child Representative.
It is fair to say that Mr Edney has had considerable contact with the children and has been of assistance to the Court in the past, but more particularly to the parties. I commend the wife and the husband in the dignity of their approach to the problem and their helpful communications with Mr Edney, notwithstanding the polarised position each took as to what contact the husband should have with the three children.
By way of additional background and in order to give narrative understanding to this short judgment, the parties were married in November 1992 and following substantial marital disharmony between them, finally separated in April 2001.
The arrangements pursuant to my orders made 27 January 2006 provided for the husband to have contact with the three children of an alternate Sunday between the hours of 10.30 am and 4.30 pm until February 2006, and then from 9.30 am to 6.00 pm. Changeover was initially to take place at McDonald's, but more recently has taken place at the home of a Mr and Mrs W who have been assisting…

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: C & C [2006] FamCA 701
Case: [2006] FamCA 701
Decision Date: 26 June 2006

CaseChat Overview and Summary

This matter concerned contested applications for contact between a husband and his three children, E, N, and S. The dispute centred on the husband's application for overnight, alternate weekend contact, which the wife opposed, arguing it was too soon. The court had previously made interim orders for contact, which had evolved from supervised to supported arrangements. The case management process, including a report from a court counsellor, Ms H, and the assistance of a Child Representative, Mr Edney, had been instrumental in progressing the matter.

The primary legal issue before the court was to determine appropriate contact arrangements for the children, specifically whether to grant the husband's request for overnight contact. This required the court to consider the children's welfare, their expressed wishes, and the impact of any proposed changes on their stability and relationship with both parents. The court also considered the appropriateness and procedure of judicial interviews with children in family law proceedings, referencing relevant rules and case law.

Justice Guest conducted a judicial interview with the children, finding them to be delightful, comfortable, and at ease with the process. The children expressed affection for both parents and indicated a desire for more frequent contact with their father, including overnight stays. While E expressed some initial discomfort with unsupervised contact, this was understood to relate to past supervised arrangements. N and S were enthusiastic about overnight contact, and all children stated they felt safe with their father. The court noted the positive role played by Mr and Mrs W in facilitating contact and the children's preference to attend contact together.

Following the judicial interview and further discussions, the parties, with the assistance of their legal representatives and the Child Representative, negotiated Minutes of Proposed Consent Orders. These orders embraced the children's wishes and prescribed specific contact days, including overnight stays, at the father's home. The court made orders in terms of these minutes, marking them as Exhibit "A", and directed that the judgment be transcribed and placed on the court file. The matter was adjourned to 30 October 2006 for the potential presentation of final consent orders.

Orders