CANFELD & FALKINS - [2020] FCCA 2570

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANFELD & FALKINS

[2020] FCCA 2570

Catchwords:
FAMILY LAW – Interim parenting – whether mother’s time should be supervised by a professional supervisor or by a named individual.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
Insley & Insley [2018] FCCA 438
MRR v GR [2010] HCA 4

Applicant:

MR CANFELD

Respondent:

MS FALKINS

File Number:

WOC 116 of 2019

Judgment of:

Judge Altobelli

Hearing date:

31 August 2020

Date of Last Submission:

31 August 2020

Delivered at:

Wollongong

Delivered on:

9 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Haddock

Solicitors for the Applicant:

Soden Legal

Counsel for the Respondent:

Mr Hill

Solicitors for the Respondent:

Benjamin Solicitor

Counsel for the Independent Children's Lawyer:

Ms McConaghy

Solicitors for the Independent Children's Lawyer:

Clayhills Escobar Solicitors

ORDERS

ORDERS PENDING FURTHER ORDER THAT:

The children X (born in 2004), Y (born in 2009) and Z (born in 2012) (‘the children’) live with the Father.
The children shall spend time with the Mother, such time to be supervised by Mr B in alternating fortnightly cycles as follows:
(a)Fortnight one: from 10:00am to 4:00pm on Sunday;
(b)Fortnight two: from 5:00pm Saturday until 12:00pm Sunday.
Order 2 above is subject to Mr B providing an Undertaking to the Court as prepared by the Independent Children’s Lawyer in consultation with the parties’ legal representatives.
For the purposes of facilitating Order 2 above, the Father shall deliver the children to Town C McDonald’s at the commencement of the time and shall pick the children up from Suburb D McDonald’s at the conclusion of the time.
The Mother be restrained from bringing the children into contact with Mr E.
Each party be restrained from denigrating the other in the hearing or presence of the children.

FURTHER ORDERS:

The matter be stood over to the Callover listing on 6 November 2020 at 9:30am (time changed in Chambers).

NOTATION:

(a)The children’s time with the Mother is to commence from 20 September 2020.

IT IS NOTED that publication of this judgment under the pseudonym Canfeld & Falkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 116 of 2019

MR CANFELD

Applicant

And

MS FALKINS

Respondent

ORAL REASONS FOR JUDGMENT

These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

I had originally planned to deliver written Reasons for Judgment in this matter but the more I reviewed the evidence and considered the submissions made to me, the more I came to the conclusion that the critical issue in dispute was relatively narrow in its scope and therefore could be dealt with just as effectively, and certainly more efficiently, by oral Reasons for Judgment that can be later taken out and published in the usual manner so…

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 CANFELD & FALKINS

Details

AGLC: Canfeld and Falkins [2020] FCCA 2570
Case: [2020] FCCA 2570
Decision Date: 9 September 2020

CaseChat Overview and Summary

In the matter of CANFELD & FALKINS, Judge Altobelli of the Family Court of Australia considered an application for interim parenting orders concerning the children X, Y, and Z. The dispute centred on the nature of the mother's time with the children, specifically whether it should be supervised by a professional supervisor or a named individual.

The court was required to determine the specific arrangements for the children's time with the mother on an interim basis, including the identity of the supervisor and the practical logistics of these arrangements. Additionally, the court needed to address concerns regarding the mother's contact with a Mr E and the behaviour of both parents in the presence of the children.

Judge Altobelli ordered that the children live with the Father. The mother's time with the children was to be supervised by a Mr B, in alternating fortnightly cycles involving specific days and times. This supervision was contingent on Mr B providing an undertaking to the court. The father was directed to facilitate the handover of the children at designated McDonald's locations. The mother was restrained from bringing the children into contact with Mr E, and both parents were restrained from denigrating each other in the children's presence. The matter was adjourned for further consideration.

Orders

Orders of the court

ORDERS PENDING FURTHER ORDER THAT:

The children X (born in 2004), Y (born in 2009) and Z (born in 2012) (‘the children’) live with the Father.

The children shall spend time with the Mother, such time to be supervised by Mr B in alternating fortnightly cycles as follows:

(a) Fortnight one: from 10:00am to 4:00pm on Sunday;

(b) Fortnight two: from 5:00pm Saturday until 12:00pm Sunday.

Order 2 above is subject to Mr B providing an Undertaking to the Court as prepared by the Independent Children’s Lawyer in consultation with the parties’ legal representatives.

For the purposes of facilitating Order 2 above, the Father shall deliver the children to Town C McDonald’s at the commencement of the time and shall pick the children up from Suburb D McDonald’s at the conclusion of the time.

The Mother be restrained from bringing the children into contact with Mr E.

Each party be restrained from denigrating the other in the hearing or presence of the children.

FURTHER ORDERS:

The matter be stood over to the Callover listing on 6 November 2020 at 9:30am (time changed in Chambers).

NOTATION:

(a) The children’s time with the Mother is to commence from 20 September 2020.

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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