FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUBBIN & ALMOND | [2014] FCCA 3200 |
| Catchwords: FAMILY LAW – Interim parenting – care arrangements – allegations of sexual abuse – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.4, 13C, 60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAA, 65DAA(5), 65DAC, 65F, 69ZW |
| Deacon & Castle [2013] FCCA 691 Other Articles Cited: |
| Applicant: | MR CUBBIN |
| Respondent: | MS ALMOND |
| File Number: | CAC 2061 of 2010 |
| Judgment of: | Judge Harman |
| Hearing date: | 10 December 2014 |
| Date of Last Submission: | 10 December 2014 |
| Delivered at: | Albury |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Naumann of Walsh & Blair |
The Respondent appeared in person
ORDERS
Pursuant to s.248 of the Children and Young Persons (Care and Protection) Act 1998 the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within two (2) hours after receipt by them of this request a Personal History Summary relating to the following children:
(a)X born (omitted) 2009;
(b)Y born (omitted) 2010;
or any of them.
Neither party nor the independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Family and Community Services without the Court’s leave.
Suspend all existing parenting orders with respect to the children X born (omitted) 2009 and Y born (omitted) 2010.
Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X and Y at such times as they are in the care of that parent.
Pending further order, X and Y shall live with their father:
(a)Each alternate weekend from 9am Saturday until 5pm Tuesday, first such period to commence 20 December 2014;
(b)Each intervening week from 9am Monday until 5pm Tuesday, first such period to commence 29 December 2014;
(c)From 5pm Christmas Day until 5pm Boxing Day in 2014; and
(d)Such further and/or other times as agreed from time to time.
Pending further order X and Y shall live with their mother at all times when not living with their father.
The mother shall spend time with X and Y from 12noon until 5pm on her birthday, (omitted) 2014.
For the purpose of changeover between the…
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- AGLC
- Cubbin and Almond [2014] FCCA 3200
- Case
- [2014] FCCA 3200
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the determination of interim living arrangements for X and Y, the allocation of parental responsibility, and the establishment of contact arrangements between the children and each parent. The court also considered its power to direct government agencies, specifically the Department of Family and Community Services and the NSW Police Service, to provide information relevant to the children's welfare and any allegations of abuse or family violence. The appointment of an Independent Children's Lawyer and the requirement for the parties to attend family counselling were also key considerations.
The court applied principles from the *Children and Young Persons (Care and Protection) Act 1998* and the *Family Law Act 1975*. It exercised its power under section 248 of the *Children and Young Persons (Care and Protection) Act 1998* to request a Personal History Summary from Community Services. The court also invoked section 61C of the *Family Law Act 1975* to grant parents parental responsibility when the children are in their care. Furthermore, the court made orders under section 69ZW(1) of the *Family Law Act 1975* directing the NSW Police Service to provide documents and information, with provisions to protect the identity of notifiers and witnesses. An Independent Children's Lawyer was appointed pursuant to section 68L of the *Family Law Act 1975*, and the parties were directed to attend family counselling under section 13C of the *Family Law Act 1975*.
The court made extensive interim orders, suspending existing parenting orders and establishing a shared living arrangement for X and Y between their parents. The children were to live with their father on alternate weekends and intervening weeks, with specific provisions for Christmas. They were to live with their mother at all other times. The court also ordered specific contact time for the mother on her birthday and detailed the process for changeovers between parents. The court further ordered that X attend a specific public school and not any other without consent. The matter was adjourned for further mention and directions.
Orders
Orders of the court
1.
Pursuant to s.248 of the Children and Young Persons (Care and Protection) Act 1998 the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within two (2) hours after receipt by them of this request a Personal History Summary relating to the following children:
(a) X born (omitted) 2009;
(b) Y born (omitted) 2010;
or any of them.
2.
Neither party nor the independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Family and Community Services without the Court’s leave.
3.
Suspend all existing parenting orders with respect to the children X born (omitted) 2009 and Y born (omitted) 2010.
4.
Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X and Y at such times as they are in the care of that parent.
5.
Pending further order, X and Y shall live with their father:
(a) Each alternate weekend from 9am Saturday until 5pm Tuesday, first such period to commence 20 December 2014;
(b) Each intervening week from 9am Monday until 5pm Tuesday, first such period to commence 29 December 2014;
(c) From 5pm Christmas Day until 5pm Boxing Day in 2014; and
(d) Such further and/or other times as agreed from time to time.
6.
Pending further order X and Y shall live with their mother at all times when not living with their father.
7.
The mother shall spend time with X and Y from 12noon until 5pm on her birthday, (omitted) 2014.
8.
For the purpose of changeover between the parents:
(a) Ms Almond shall deliver the children to Mr Cubbin at his home at the commencement of each period that they are to live with him; and
(b) Mr Cubbin shall deliver the children to Ms Almond at her home at the beginning of each period that they are to live with or spend time with her.
9.
Pursuant to s.69ZW(1) I order and direct the NSW Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:
(a) Any notification to the agency of suspected abuse of or by the following:
(i) Mr Cubbin born (omitted) 1958; and
(ii) Ms Almond born (omitted) 1972;
or any of them.
(b) Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;
(c) Any reports commissioned by the agency in the course of investigating a notification;
and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer)and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced
10.
Neither party nor the independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Police Service without the Court’s leave.
11.
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
12.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Family Relationships Centre (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a) Attend at such times, dates and places as may be advised; and
(b) Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
13.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
14.
The matter is adjourned for further mention and directions to 23 April 2015 at 9.30am.
15.
Pending further order, X shall attend (omitted) Public School and shall not attend any other school, save with the consent of both parties first had and obtained.
16.
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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