Crook and Major - [2016] FCCA 3181

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROOK & MAJOR

[2016] FCCA 3181

Catchwords:
FAMILY LAW – Interim parenting – father lives in (country omitted) – allegations with respect to family violence, mental health and alienation.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 68L(2)

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Applicant:

MR CROOK

Respondent:

MS MAJOR

File Number:

ADC 4474 of 2015

Judgment of:

Judge Harland

Hearing date:

25 November 2016

Date of Last Submission:

25 November 2016

Delivered at:

Dandenong

Delivered on:

25 November 2016

REPRESENTATION

Solicitors for the Applicant:

Victoria Legal Aid

Respondent:

In person

ORDERS

The proceeding is adjourned for Interim Contested Hearing on 23 February 2017 at 11.00am before Judge Baumann at the Dandenong Registry of the Federal Circuit Court of Australia.
Pursuant to s.68L(2) of the Family Law Act 1975, the child X born (omitted) 2012 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
(a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;
(c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and
(d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.
The Independent Children’s Lawyer make enquiries and arrangements in consultation with the parties for both parties to be psychiatrically assessed by a psychiatrist as nominated by the Independent Children’s Lawyer.
The appointments pursuant to Order (3) herein occur when the Respondent is already in Melbourne where possible.
The father spend supervised time with the child by the mother’s husband at times to be agreed by the parties and failing agreement from 10.00am until 2.00pm on Sunday when the father is in Australia.
The mother make the child available for the father to have skype communication with the child at least three times a week.
The father be granted leave to appear by telephone at the Interim Contested Hearing.
The parties make, file and serve any material wished to be relied upon on or before 7 days prior to the Interim Contested Hearing.
The father deposit the child’s passport with the Dandenong registry of the Federal Circuit Court of Australia and the registry hold the child’s passport until further order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

ADC 4474 of 2015

MR CROOK

Applicant

And

MS MAJOR

Respondent

REASONS FOR JUDGMENT

These reasons for…

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 Crook and Major

Details

AGLC: Crook and Major [2016] FCCA 3181
Case: [2016] FCCA 3181
Decision Date: 25 November 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Harland presided over proceedings involving the parties, Crook and Major, concerning their child, X. The dispute centred on arrangements for the child, including parental time, communication, and the child's independent representation.

The court was required to determine several key issues. These included the appointment and role of an independent children's lawyer, the need for psychiatric assessments of the parents, the terms of supervised parental time for the father, and the facilitation of Skype communication between the father and the child. Additionally, the court considered the father's ability to appear by telephone at a future hearing and the deposit of the child's passport.

Judge Harland applied the principles of the *Family Law Act 1975*, specifically section 68L(2), to appoint an independent children's lawyer and outline their responsibilities, including filing a notice of address, obtaining relevant documents, adhering to published guidelines, and preparing recommendations for final orders. The court also ordered psychiatric assessments for both parents, with arrangements to be made by the independent children's lawyer. Supervised time for the father was ordered, to be facilitated by the mother's husband, and Skype communication was mandated. The father was granted leave to appear by telephone at the interim contested hearing, and parties were directed to file and serve material in advance. The child's passport was ordered to be deposited with the court.

Orders

Orders of the court

The proceeding is adjourned for Interim Contested Hearing on 23 February 2017 at 11.00am before Judge Baumann at the Dandenong Registry of the Federal Circuit Court of Australia.

Pursuant to s.68L(2) of the Family Law Act 1975, the child X born (omitted) 2012 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

(a) forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

(b) within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;

(c) the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

(d) the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

The Independent Children’s Lawyer make enquiries and arrangements in consultation with the parties for both parties to be psychiatrically assessed by a psychiatrist as nominated by the Independent Children’s Lawyer.

The appointments pursuant to Order (3) herein occur when the Respondent is already in Melbourne where possible.

The father spend supervised time with the child by the mother’s husband at times to be agreed by the parties and failing agreement from 10.00am until 2.00pm on Sunday when the father is in Australia.

The mother make the child available for the father to have skype communication with the child at least three times a week.

The father be granted leave to appear by telephone at the Interim Contested Hearing.

The parties make, file and serve any material wished to be relied upon on or before 7 days prior to the Interim Contested Hearing.

The father deposit the child’s passport with the Dandenong registry of the Federal Circuit Court of Australia and the registry hold the child’s passport until further order.

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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