Chinson and Harcourt - [2009] FamCA 222

FAMILY COURT OF AUSTRALIA

CHINSON & HARCOURT

[2009] FamCA 222

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT:

Ms Chinson

RESPONDENT:

Mr Harcourt

FILE NUMBER:

PAC

3842

2008

DATE DELIVERED:

23 February 2009

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Loughan JR

HEARING DATE:

23 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Blaxland Mawson & Rose

COUNSEL FOR THE RESPONDENT:

Ms De Vere

SOLICITOR FOR THE RESPONDENT:	Smythe & Wozniak
COUNSEL FOR THE INTERVENER:	Ms Guterres

SOLICITOR FOR THE INTERVENER

I.V. Knight, Crown Solicitor

Orders

The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 1 April 2009 at Sydney.
Until 6:00 pm on 1 April 2009 that part of the operation of orders made on 2 February 2009 that provide for unsupervised time between the father and the children K born … July 1999 and J born … May 2000 is suspended.
That the children spend time with their father under arrangements of supervision that are agreed with the Department of Community Services and the mother’s solicitor.
That the parties do all things and sign all documents to meet the requirements of any independent supervising agency.
That until 6:00 pm on 1 April 2009 the injunction contained in Orders 6 and 7 made on 10 February 2009 continue.
Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children K born … July 1999 and J born … May 2000
The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.
The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.
Each party make available to the Legal Aid Commission of New South Wales, within 7 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
That the mother facilitate the attendance upon their representative of the children at times, dates and places requested by the representative.
That any further documents on which any party seeks to rely are to be filed and served not later than close of business on 30 March 2009.

IT IS NOTED that publication of this judgment under the pseudonym Harcourt & Chinson is approved pursuant to s 1219(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3842 of 2008

MS HARCOURT

Applicant

And

MR CHINSON

Respondent

REASONS FOR JUDGMENT

These are proceedings in relation to two boys: K and J, who are 9 and 8 years of age, respectively.
The matter first came before me at Parramatta on 2 February 2009. I made orders requiring the children to return to live in Sydney, it being the case that their mother had moved the boys from Sydney to southern New South Wales…

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 Chinson and Harcourt

Details

AGLC: Chinson and Harcourt [2009] FamCA 222
Case: [2009] FamCA 222
Decision Date: 23 February 2009

CaseChat Overview and Summary

The proceedings involved the father and mother of two children, K and J. The dispute concerned arrangements for the father's time with the children, with specific orders made on 2 February 2009 regarding unsupervised time. The matter came before Loughan JR.

The court was required to determine whether to suspend the operation of existing orders providing for unsupervised time between the father and the children, and to establish interim arrangements for supervised time. Further issues included the appointment of an Independent Children's Lawyer and the provision of necessary documentation to the Legal Aid Commission.

Loughan JR ordered that the unsupervised time provisions of the 2 February 2009 orders be suspended until 6:00 pm on 1 April 2009. During this period, the children were to spend time with their father under supervision arrangements agreed with the Department of Community Services and the mother's solicitor. The court also continued an injunction from previous orders made on 10 February 2009. Pursuant to section 68L of the *Family Law Act 1975*, an Independent Children's Lawyer was appointed for the children. The Legal Aid Commission of New South Wales was requested to arrange representation for the children, and parties were directed to provide relevant documents to the Commission. The mother was ordered to facilitate the children's attendance upon their representative. The proceedings were adjourned to the Judicial Registrar’s Call-over on 1 April 2009.

Orders

Orders of the court

The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 1 April 2009 at Sydney.

Until 6:00 pm on 1 April 2009 that part of the operation of orders made on 2 February 2009 that provide for unsupervised time between the father and the children K born … July 1999 and J born … May 2000 is suspended.

That the children spend time with their father under arrangements of supervision that are agreed with the Department of Community Services and the mother’s solicitor.

That the parties do all things and sign all documents to meet the requirements of any independent supervising agency.

That until 6:00 pm on 1 April 2009 the injunction contained in Orders 6 and 7 made on 10 February 2009 continue.

Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children K born … July 1999 and J born … May 2000

The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

Each party make available to the Legal Aid Commission of New South Wales, within 7 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

10.

That the mother facilitate the attendance upon their representative of the children at times, dates and places requested by the representative.

11.

That any further documents on which any party seeks to rely are to be filed and served not later than close of business on 30 March 2009.

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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