DALFREY & SALTMAN - [2020] FCCA 1733

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALFREY & SALTMAN

[2020] FCCA 1733

Catchwords:
FAMILY LAW – Interim parenting – for how long should children continue to have supervised time with their father – risk of harm to children.

Legislation:

Evidence Act 1995 (NSW), s.128
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61C, 61DA, 65DAA, 68B, 68P

Cases cited:

Deiter & Deiter [2011] FamCAFC
Eaby & Speelman [2015] FamCAFC 104
Enmore & Smoothe [2014] FamCAFC 131
Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145
Goode & Goode [2006] FamCA 1346
Insley & Insley [2018] FCCA 438

Applicant:

MR DALFREY

Respondent:

MS SALTMAN

File Number:

WOC 49 of 2018

Judgment of:

Judge Altobelli

Hearing date:

12 June 2020

Date of Last Submission:

12 June 2020

Delivered at:

Wollongong

Delivered on:

7 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms Gillies SC

Solicitors for the Applicant:

Hansons Lawyers

Solicitors for the Respondent:

DGB Lawyers

Solicitors for the Independent Children's Lawyer:

Sydney Family Law Specialists Pty Ltd

ORDERS PENDING FURTHER ORDER

The Order for equal shared parental responsibility made on a final basis on 27 June 2018 be suspended.
The children X (born in 2004), Y (born in 2005), Z (born in 2009) (‘the children’) spend time with the Father supervised at all times by Ms B and Mr C as follows:
(a)From 11:00am – 1:00pm each alternate Sunday for a total of 4 Sundays at the home of the supervisors; and
(b)Thereafter from 11:00am – 3:00pm each alternate Sunday.
For the purposes of changeover:
(a)The Mother and/or her nominee shall deliver the children to Mr C and Ms B at their residence at least 15 minutes prior to the commencement of the Father’s time; and
(b)The Mother and/or her nominee shall collect the children from Mr C and Ms B at their residence at least 10 minutes after the conclusion of the Father’s time;
(c)The Father shall not arrive at the home of Mr C and Ms B until at least 10:55am on the days that he is to spend time with the children pursuant to these Orders; and
(d)The Father shall leave the home of Mr C and Ms B after he has spent time with the children within 5 minutes of his time with the Children concluding.
The Mother will ensure that the children take their mobile phones with them during their time with the Father and the Father shall not do any act or thing to prevent the children using their mobile telephones to contact their mother if they choose to do so.
In addition to the FaceTime communication that the Father has with the children pursuant to the Orders made on 24 April 2020, he shall also have FaceTime communication with the children each alternate Sunday that he is not spending with the children, at the same times and on the same conditions as set out in Order 3 and 4 of the Orders made on 24 April 2020.
Pursuant to s68B the Father shall hereby be…

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 DALFREY & SALTMAN

Details

AGLC: DALFREY & SALTMAN [2020] FCCA 1733
Case: [2020] FCCA 1733
Decision Date: 7 July 2020

CaseChat Overview and Summary

In the matter of *Dalfrey & Saltman*, Altobelli J of the Federal Circuit and Family Court of Australia considered an application for interim parenting orders concerning the supervised time of children with their father. The central dispute revolved around the duration for which these supervised arrangements should continue, given the alleged risk of harm to the children.

The court was tasked with determining the appropriate length of time for the supervised contact to remain in place. This involved assessing the current circumstances of the family, the nature of the alleged risks, and the best interests of the children in the interim period. The primary legal issue was how to balance the children's need for contact with their father against the imperative to protect them from potential harm.

Altobelli J's reasoning focused on the paramountcy of the children's welfare and safety. The judge applied principles of family law concerning interim orders, which require a careful consideration of the evidence presented and the potential consequences of any order made. The court weighed the need for continued supervision to mitigate identified risks against the importance of maintaining a relationship between the children and their father, albeit in a controlled environment. The decision underscored the court's role in making pragmatic, interim arrangements that safeguard children while further investigations or proceedings are underway.

Orders