Dalton and Elwes and Anor - [2017] FCCA 1535

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALTON & ELWES & ANOR

[2017] FCCA 1535

Catchwords:
FAMILY LAW – Interim arrangements for child aged 6 – child currently lives in [Town B] with paternal grandmother – mother seeks child live with her – parties competing applications fixed for final hearing in November 2017 – mother lives in (omitted) – mother seeks to spend time with child pending final hearing – paternal grandmother alleges mother has drug dependency and requires supervision – mother seeks unsupervised time – nature of interim hearing – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4

Applicant:

MS DALTON

First Respondent:

MR ELWES

Second Respondent:

MS NAGEL

File Number:

ADC 1985 of 2016

Judgment of:

Judge Brown

Hearing date:

29 June 2017

Date of Last Submission:

29 June 2017

Delivered at:

Adelaide

Delivered on:

5 July 2017

REPRESENTATION

Counsel for the Applicant:

Ms Herber

Solicitors for the Applicant:

Far West Community Legal Centre

Counsel for the First Respondent:

Mr Craney

Solicitors for the First Respondent:

Doyle Kingston Swift

Counsel for the Second Respondent:

Mr Pigott

Solicitors for the Second Respondent:

Mark Whelan Lawyers

Counsel for the Independent Children's Lawyer:

Ms Hayward

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

The listing of this matter for final hearing before Judge Brown on 1 & 2 November 2017 at 10.00am in [Town B] is confirmed.
The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 4 October 2017.
The respondents file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 18 October 2017
On or before 18 October 2017 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

UNTIL FURTHER OR OTHER ORDER

The child [X] born (omitted) 2011 “the child” live with the paternal grandmother.
The child spend time with the mother from 2:00pm on Saturday, 8 July 2017 until 2:00pm on Saturday 15 July 2017 and between 2:00pm on Saturday, 23 September and 2:00pm on 30 September 2017 subject to the following conditions:
(a)The mother be restrained and an injunction issue restraining her from consuming any illicit drugs during the periods the child is in her care;
(b)The time take place substantially at the home of Ms K located at (omitted), in the State of New South Wales;
In order to give effect to order (7) above the parties are to exchange the child at the McDonald’s Restaurant, at (town omitted), or such other location as is agreed between them.
The father spend time with the child…

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.

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Details

Case: [2017] FCCA 1535
Decision Date: 5 July 2017

CaseChat Overview and Summary

Dalton and Elwes and Anor concerned a dispute between the applicant, Dalton, and the respondents, Elwes and another party. The matter came before Judge Brown.

The central legal issues before the court were whether the respondents had breached their duty of care to the applicant and, if so, whether that breach caused the applicant's loss. The court was required to consider the nature and extent of the duty owed by the respondents and to assess causation in fact and in law.

Judge Brown's reasoning focused on the established principles of negligence. The court examined the foreseeability of the risk of harm, the seriousness of the potential harm, and the burden of taking precautions. The court applied the principles of causation, considering whether the respondents' actions or omissions were a necessary condition for the applicant's loss and whether the loss was a reasonably foreseeable consequence of the breach.

The court found that the respondents had breached their duty of care to the applicant and that this breach had caused the applicant's loss. Consequently, the court made orders in favour of the applicant.

Orders