Dawes and Dawes - [2014] FCCA 3154

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAWES & DAWES

[2014] FCCA 3154

Catchwords:
FAMILY LAW – Interim parenting application on short notice – competing parenting applications – with whom children should live – allegations of family violence – consideration of unacceptable risk.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA(5), 67ZBB
Mental Health Act 2007 (NSW), ss.4, 14, 15, 16
International Convention on the Rights of the Child
Universal Declaration of Human Rights 1948

Cowling & Cowling [1998] FamCA 19
Griffiths& Griffiths (1981) FLC 91-064
Cilento & Cilento (1980) FLC 90-847
Rainer & Rainer (1982) FLC 91-239
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCAFC 101

Deacon & Castle [2013] FCCA 691
Johnson & Page [2007] FamCA 1235

M & M (1987) FLC 91 – 830

Briginshaw v Briginshaw (1938) 60 CLR 336
A v A (1976) V.R 298

B & B (1986) FLC 91 – 758
Leveque v Leveque (1983) 54 B.C.L.R 164
Re G(a minor) (1987) 1 W.LR 1461
W & W (abuse allegations unacceptable risk) (2005) FLC 93 – 235
N & S (1996) FLC 92 – 655
Napier & Hepburn (2006) FLC 93 – 303, (2006) 36 FamLR 395
S & S [1993] NZFLR 657
M v Y [1994] NZFLR 1
Potter v Potter (2007) FamCA 350
People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 2014 WL 6802767 (N.Y. App. Div. Dec. 4, 2014)

Other Articles Cited:
Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249

Applicant:

MS DAWES

Respondent:

MR DAWES

File Number:

PAC 6029 of 2014

Judgment of:

Judge Harman

Hearing date:

18 December 2014

Date of Last Submission:

18 December 2014

Delivered at:

Parramatta

Delivered on:

18 December 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Jurd of Peter Jurd Lawyer

Solicitors for the Respondent:

Ms Ralston of Coleman & Greig Lawyers

ORDERS

Pending further order and pursuant to section 61C each parent shall have parental responsibility for their children X born (omitted) 2011 and Y born (omitted) 2013.
Pending further order, the children shall live with their mother.
Pending further order, the children shall spend time with their father:
(a)Each Wednesday from 10am until 5pm (extending to 6pm during day light savings);
(b)Each weekend from 12noon Saturday until 5pm Sunday (extending to 6pm during day light savings);
(c)From 5pm Christmas Day until 6pm the following Sunday in 2014; and
(d)For such other times as agreed between the parents from time to time.
For the purpose of the children passing into the father’s care and returning to the mother’s the father shall collect the children from and return the children to the mother at the mother at the mother’s home.
Each parent shall forthwith and if they have not already done so, do all things, sign all documents and give all consents and authorities necessary to ensure that each parent is recorded with any treating general practitioner for the children, any…

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 Dawes and Dawes

Details

AGLC: Dawes and Dawes [2014] FCCA 3154
Case: [2014] FCCA 3154
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the matter of *Dawes and Dawes*, heard by Judge Harman, the dispute concerned parenting arrangements for two children, X and Y. The orders made by the court addressed parental responsibility, the children's living arrangements, and their time spent with each parent.

The court was required to determine the specific terms of parental responsibility, where the children would live, and the schedule for their time with each parent. Additionally, the court considered provisions for the parents' involvement in the children's medical and educational matters, and the necessity for family counselling and dispute resolution services.

The court ordered that each parent would have parental responsibility for the children, who would live with their mother. The father was granted specific time with the children, including mid-week and weekend contact, and holiday arrangements. The orders also mandated that both parents be listed as emergency contacts for medical and educational purposes, and that they inform each other of significant health events. Furthermore, the court directed both parents to engage with family counselling services and a Family Dispute Resolution Practitioner, with specific timelines and requirements for attendance and payment. The court also noted the father's undertaking to return the children to the mother's home by a specified time.

Orders

Orders of the court

Pending further order and pursuant to section 61C each parent shall have parental responsibility for their children X born (omitted) 2011 and Y born (omitted) 2013.

Pending further order, the children shall live with their mother.

Pending further order, the children shall spend time with their father:

(a) Each Wednesday from 10am until 5pm (extending to 6pm during day light savings);

(b) Each weekend from 12noon Saturday until 5pm Sunday (extending to 6pm during day light savings);

(d) For such other times as agreed between the parents from time to time.

For the purpose of the children passing into the father’s care and returning to the mother’s the father shall collect the children from and return the children to the mother at the mother at the mother’s home.

Each parent shall forthwith and if they have not already done so, do all things, sign all documents and give all consents and authorities necessary to ensure that each parent is recorded with any treating general practitioner for the children, any medical specialist upon which the children or either of them attend and any preschool attended by the children or either of them as both a parent and emergency contact person and such as to allow each parent to obtain information and reports and be fully involved and consulted regarding the child’s medical treatment of education.

Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the children such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to visit the children if hospitalised.

Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within 21 days contact the intake officer of 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.

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.

Each party shall, within 4 weeks, register with www.uptoparents.org and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer (if appointed).

10.

Pursuant to section 13C of the Family Law Act 1975, the Independent Children’s Lawyer and the parties and each of them shall forthwith and within seven (7) days contact a Family Dispute Resolution Practitioner agreed between them for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution 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 Family Dispute Resolution prior to the next Court event.

11.

The matter is adjourned for further mention and directions to 29 April 2015 at 9.30am.

12.

Note the father’s undertaking to the court that he will deliver the children to the mother’s home by 6pm this evening.

13.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.