Davidson and Cox - [2014] FCCA 3147

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVIDSON & COX

[2014] FCCA 3147

Catchwords:
FAMILY LAW – Parenting – interim hearing to suspend time – whether unacceptable risk of harm to child.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

M & M (1988) 166 CLR 69
A & A (1998) FLC 92-800
McCall v Clark (2009) FLC 93‑405
Loddington & Derringford(No.2) [2008] FamCA 925
W (Sex Abuse: Standard of Proof) (2004) FLC 93‑192
TF & JF & Children’s Representative (2005) FLC 93‑227

Applicant:

MR DAVIDSON

Respondent:

MS COX

File Number:

HBC 95 of 2013

Judgment of:

Judge Baker

Hearing date:

20 November 2014

Date of Last Submission:

20 November 2014

Delivered at:

Hobart

Delivered on:

21 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Munro

Solicitors for the Applicant:

Munro & Associates

Respondent in person:

Ms Cox

Solicitors for the Respondent:

N/A

Counsel for the Independent Children’s Lawyer:

N/A

Solicitors for the Independent Children’s Lawyer:

N/A

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

Orders 4(a)–(d) of the Orders of the Federal Circuit Court of Australia made 18 December 2013 be suspended.
The child, X born (omitted) 2007 ("the child") spend time and communicate with the Applicant as follows:
(a)Commencing 25 November 2014, by telephone twice per week on Tuesdays and Thursdays between 6.30pm and 7.30pm when the Applicant may initiate a call to the Respondent, and the Respondent will facilitate that call to the child; and
(b)Commencing 28 November 2014, each Friday from after school until 5pm Saturday.
The Applicant’s time with the child, including during the collection and return of the child, be in the presence of the paternal grand-mother.
The parties each contact the (omitted) Children's Contact Centre (“the Contact Centre”) within 48 hours and arrange an appointment for an assessment for suitability for changeover to be effected at the Contact Centre, and:
(a)Attend the assessment;
(b)Comply with any appointments made by the Contact Centre for changeover;
(c)Comply with all rules of the Contact Centre; and
(d)Comply with all reasonable requests or directions of staff of the Contact Centre.
In relation to the collection and return of the child:
(a)If a school day:
(i)The Applicant collect the child from the child’s school and the Respondent not be on the school grounds either during or for 2 hours prior to that collection;
(ii)The Applicant return the child to the Contact Centre, and if the Contact Centre is otherwise unavailable or unable to be used, to the (omitted) Police Station.
(b)If a non-school day: child be collected and returned by the Applicant to the Contact Centre, and if the Contact Centre is otherwise unavailable or unable to be used, to the (omitted) Police Station.

THE COURT ORDERS THAT:

The matter be adjourned to 11 December 2014 at 10am for mention.
Pursuant to s.68L(2) of the Family Law Act1975, the child be independently represented, and it is requested that that the Legal Aid Commission of Tasmania make arrangements as soon as practicable to secure such representation.
As soon…

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 Davidson and Cox

Details

AGLC: Davidson and Cox [2014] FCCA 3147
Case: [2014] FCCA 3147
Decision Date: 21 November 2014

CaseChat Overview and Summary

In the matter of Davidson and Cox, heard by Judge Baker, the dispute concerned parenting arrangements for a child. The court was required to determine the extent to which its orders regarding the child's time with the applicant and the method of collection from school should prevail over an Interim Family Violence Order made in the Magistrates Court of Tasmania.

The central legal issue was the potential inconsistency between the Family Law Act 1975 proceedings and the existing Interim Family Violence Order. Specifically, the court had to consider the implications of its own orders, which permitted the applicant to spend time with the child and arrange for collection from a particular school, against the prohibitions contained within the Interim Family Violence Order regarding contact with the child and proximity to the school.

Judge Baker reasoned that pursuant to s.68P of the Family Law Act 1975, the court's orders would prevail over any inconsistent provisions in the Interim Family Violence Order. The court explicitly found that its orders were inconsistent with specific provisions of the Interim Family Violence Order, including those prohibiting the applicant from approaching, spending time with, or communicating with the child, and those relating to the collection of the child from the specified primary school. The court also noted its obligations under ss.65DA(2) and 62B of the Family Law Act 1975 regarding the particulars of obligations and consequences of contravention.

The court ordered that the matter be adjourned for mention, that the child be independently represented pursuant to s.68L(2) of the Family Law Act 1975, and that the Independent Children’s Lawyer file a Notice of Address for Service. Both parties were directed to provide all relevant documents to the Independent Children’s Lawyer within 48 hours of notification of their appointment. Crucially, the court declared that its orders would prevail over the Interim Family Violence Order to the extent of any inconsistency, rendering the Interim Family Violence Order invalid to that extent.

Orders

Orders of the court

The matter be adjourned to 11 December 2014 at 10am for mention.

Pursuant to s.68L(2) of the Family Law Act 1975, the child be independently represented, and it is requested that that the Legal Aid Commission of Tasmania make arrangements as soon as practicable to secure such representation.

As soon as practicable upon appointment by the Legal Aid Commission of Tasmania or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

Within 48 hours of notification of the appointment of the Independent Children’s Lawyer, each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

10.

Pursuant to s.68P of the Family Law Act 1975, to the extent of any inconsistency between these orders and the Interim Family Violence Order made against the Applicant in the Magistrates Court of Tasmania on 1 August 2014, these orders shall prevail and the Interim Family Violence Order is invalid to the extent of the inconsistency.

11.

These Orders are inconsistent with the Interim Family Violence Order in that these Orders provide for the Applicant to spend time with the child, and for collection of the child at (omitted) Primary School.

12.

These Order are inconsistent with following Orders provided in the Interim Family Violence Order:

(a) Order 3 in respect of approaching, spending time with and communicating with the child;

(b) Order 5: in respect of collection of the child at (omitted) Primary School which is within 2000m of the boundary of (omitted); and

THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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