Callow and Claxton - [2019] FamCA 610

FAMILY COURT OF AUSTRALIA

CALLOW & CLAXTON

[2019] FamCA 610

FAMILY LAW – PARENTING – Interim arrangement – Best interests of the child – Where orders are sought by the mother to preserve the status quo of the child – Where orders are sought to suspend previous Orders of the Court and to reserve time with the father pending a psychological assessment – Where the issue of risk to the child is so dominate that it outweighs all other considerations – Where the status quo will apply only until such time as the Court has the capacity to consider additional evidence – Orders made.

Family Law Act 1975 (Cth) ss 11C, 11F, 60CC.

Blinko & Blinko [2015] FamCAFC 146
Sirola & Sirola and Anor (No.3) [2016] FamCA 1076
Stott & Holgar and Anor [2017] FamCAFC 152

APPLICANT:

Ms Callow

RESPONDENT:

Mr Claxton

INDEPENDENT CHILDREN’S LAWYER:

Phillip Theobald

FILE NUMBER:

HBC

2015

DATE DELIVERED:

13 August 2019

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

13 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Burke of Ogilvie Jennings

SOLICITOR FOR THE RESPONDENT:

Ms Pagett of Pagett & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Mooney SC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Derwent & Tamar Chambers

Orders

The matter is listed for further directions at 9.30 am on 25 February 2020.
That until further order, paragraphs 4-20 and paragraph 32 of the Orders made on 11 August 2017 be suspended.
The father’s time with the child be reserved pending further order of the Court.
Pursuant to s 11F of the Act, the parties are to attend separate meetings with a Family Consultant nominated by the Child Dispute Section of this Registry at a time and date to be fixed by Child Dispute Services, and, pursuant to s 11C of the Act, such meetings be reportable.
Following the conclusion of the meetings with the Family Consultant, the Family Consultant provide a Memorandum concerning their assessment of the parties to the parties, the Independent Children’s Lawyer and the Court.
The parties have liberty to apply on 48 hours’ notice to the Court and other parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callow & Claxton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 27 of 2015

Ms Callow

Applicant

And

Mr Claxton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter concerns an Application in a Case filed 19 July 2019 by Ms Callow (“the…

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 Callow and Claxton

Details

AGLC: Callow and Claxton [2019] FamCA 610
Case: [2019] FamCA 610
Decision Date: 13 August 2019

CaseChat Overview and Summary

This matter concerned an application before McClelland DCJ in the Family Court of Australia. The dispute involved parenting arrangements for a child, with the orders indicating a significant alteration to the father's time with the child.

The court was required to determine the appropriate interim parenting orders, specifically concerning the father's contact with the child and the need for further assessment of the parties. The court also considered the application of specific sections of the relevant Act, namely sections 11F and 11C, which relate to the involvement of Family Consultants in child-related proceedings.

McClelland DCJ ordered the suspension of certain paragraphs of previous orders made on 11 August 2017, effectively reserving the father's time with the child pending further order. The court directed both parties to attend separate meetings with a Family Consultant, with these meetings to be reportable. Following these assessments, the Family Consultant was to provide a memorandum to the parties, the Independent Children's Lawyer, and the Court. The matter was listed for further directions, and parties were granted liberty to apply on short notice.

Orders

Orders of the court

The matter is listed for further directions at 9.30 am on 25 February 2020.

That until further order, paragraphs 4-20 and paragraph 32 of the Orders made on 11 August 2017 be suspended.

The father’s time with the child be reserved pending further order of the Court.

Pursuant to s 11F of the Act, the parties are to attend separate meetings with a Family Consultant nominated by the Child Dispute Section of this Registry at a time and date to be fixed by Child Dispute Services, and, pursuant to s 11C of the Act, such meetings be reportable.

Following the conclusion of the meetings with the Family Consultant, the Family Consultant provide a Memorandum concerning their assessment of the parties to the parties, the Independent Children’s Lawyer and the Court.

The parties have liberty to apply on 48 hours’ notice to the Court and other parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.