Elias and Elias (No.2) - [2014] FCCA 2037

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELIAS & ELIAS (No.2)

[2014] FCCA 2037

Catchwords:
FAMILY LAW – Parenting – interim hearing – whether child should spend time with the father in a contact centre – whether supervised time should be delayed until father’s criminal proceedings are finalised – mother opposes the child spending any supervised time with the father until expert report obtained – transfer of proceedings to Family Court of Australia.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA

Elias & Elias [2014] FCCA 457
Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92
Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MS ELIAS

Respondent:

MR ELIAS

File Number:

SYC 7597 of 2013

Judgment of:

Judge Monahan

Hearing date:

22 August 2014

Date of Last Submission:

22 August 2014

Delivered at:

Sydney

Delivered on:

5 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr White

Solicitors for the Applicant:

Meyer Partners Family Lawyers

Counsel for the Respondent:

Ms Boyle

Solicitors for the Respondent:

MCW Lawyers

Independent Children’s Lawyer: Ms Power

ORDERS

THE COURT ORDERS THAT:

Pursuant to Division 15.2 of the Federal Circuit Court Rules, Dr. Q, Child and Family Psychiatrist, be appointed as the Single Expert (“the expert”) to enquire into and prepare a report (“the report”) upon matters relating to the welfare of the child, [X], born [omitted] 2012 (“the Child”) and in preparing the report for the Court, the expert be requested to consider the following matters:
(a)Whether the child has been or is at risk of being exposed or subjected to any physical or psychological harm or family violence;
(b)The nature of the relationship between the child and each of his parents and any other relevant person;
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents;
(d)The capacity of each of the parents to provide for the children’s needs including his emotional and intellectual needs;
(e)The attitude to the child and to responsibilities of parenthood, demonstrated by each of the parents;
(f)The effect on the child of any family violence to which he may have been exposed;
(g)The effect on the child of spending equal time, or substantial and significant time with each party having regard to the party’s current and future capacity to:
(i)implement such an arrangement; and
(ii)communicate with each other and resolve difficulties that might arise.
(h)the mental state of both parents insofar as it relates to parenting issues and treatment options, if required; and
(i)any other matter the expert considers relevant.
Both parties shall share equally in the costs associated with the report and shall each pay into the Trust Account of Legal Aid the sum of $6,750.00 within 21 days of such a request by the Independent Children’s Lawyer for payment by Legal Aid NSW to the expert in respect of the fees upon completion of the report.
In the event that there remains monies available…

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: [2014] FCCA 2037
Decision Date: 5 September 2014

CaseChat Overview and Summary

In the matter of Elias and Elias (No.2), Judge Monahan of the Federal Circuit Court was required to determine interim parenting orders concerning the welfare of a child, [X]. The proceedings involved the child's parents, the applicant mother and the respondent father, and also considered the involvement of the child's paternal grandparents and the role of an Independent Children's Lawyer.

The central legal issues before the Court were how to best ensure the child's welfare and safety, including whether the child was at risk of harm, the nature of the child's relationships with each parent and other relevant persons, and the capacity of each parent to meet the child's needs. The Court also needed to determine arrangements for the child's time with each parent, considering the potential impact of family violence and the parents' ability to communicate and cooperate. Furthermore, the Court had to address the involvement of the paternal grandparents and the supervision of the father's time with the child, particularly in light of ongoing criminal proceedings against the father.

The Court's reasoning led to the appointment of a single expert, a Child and Family Psychiatrist, to investigate and report on matters relating to the child's welfare. This expert was directed to consider a comprehensive list of factors, including risks of harm, parental relationships, parental capacity, and the impact of family violence. The Court also made detailed orders regarding the sharing of costs for the expert's report, the facilitation of the report's preparation, and the potential for cross-examination of the expert. Interim arrangements were established for the child's time with the paternal grandparents, subject to their undertaking not to denigrate the mother in the child's presence, and for supervised time with the father, contingent on the finalisation of his criminal proceedings. The Court noted that the father's time with the child might be reconsidered following the expert's report.

Orders

Orders of the court

THE COURT ORDERS THAT:

Pursuant to Division 15.2 of the Federal Circuit Court Rules, Dr. Q, Child and Family Psychiatrist, be appointed as the Single Expert (“the expert”) to enquire into and prepare a report (“the report”) upon matters relating to the welfare of the child, [X], born [omitted] 2012 (“the Child”) and in preparing the report for the Court, the expert be requested to consider the following matters:

(a) Whether the child has been or is at risk of being exposed or subjected to any physical or psychological harm or family violence;

(b) The nature of the relationship between the child and each of his parents and any other relevant person;

(c) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents;

(d) The capacity of each of the parents to provide for the children’s needs including his emotional and intellectual needs;

(e) The attitude to the child and to responsibilities of parenthood, demonstrated by each of the parents;

(f) The effect on the child of any family violence to which he may have been exposed;

(g) The effect on the child of spending equal time, or substantial and significant time with each party having regard to the party’s current and future capacity to:

(i) implement such an arrangement; and

(ii) communicate with each other and resolve difficulties that might arise.

(h) the mental state of both parents insofar as it relates to parenting issues and treatment options, if required; and

(i) any other matter the expert considers relevant.

Both parties shall share equally in the costs associated with the report and shall each pay into the Trust Account of Legal Aid the sum of $6,750.00 within 21 days of such a request by the Independent Children’s Lawyer for payment by Legal Aid NSW to the expert in respect of the fees upon completion of the report.

In the event that there remains monies available subsequent to the receipt of the memorandum of fees from the expert, these monies shall remain in the Trust Account of Legal Aid NSW and are to be returned to the parties in equal shares upon conclusion of the Court proceedings.

In the event that there is a shortfall the mother and the father are to pay such additional sum to meet the costs of the expert within 21 days of a request by Legal Aid NSW.

In the event that the expert is required for cross examination at any hearing in these proceedings, the parties shall be equally responsible for the expert’s costs in respect of such preparation and attendance and the parties are to pay such sum within 21 days of any request by Legal Aid NSW.

That the parties shall facilitate the preparation of the report including attending on and arranging for the child and any other significant person to attend upon the expert.

Leave is granted to the Independent Children’s Lawyer to issue subpoenas and have photocopy access to all material produced under subpoena for the purpose of providing same to the expert and that fees in respect of that photocopying be waived.

Upon the giving of an Undertaking by Mr E & Mrs E (“the paternal grandparents”) that they not refer to these proceedings or denigrate the applicant mother within the hearing or presence of the child, the paternal grandparents or either of them may attend the [K] Day Care Centre, [address omitted], for a period not exceeding one hour each week at 3:00pm each Tuesday or at a time specified by the Day Care Centre.

In the event that [K] Care Centre is unable to facilitate the child’s time with the paternal grandparents, the time between the child and the paternal grandparents is to take place at the [omitted] Library at 3:00pm each Tuesday or such time as agreed between the mother and the paternal grandparents.

10.

The child spend time with the father supervised by the [C] Contact Service (“[C]”), [suburb omitted], for 2 hours each week, such times as specified by the [C].

11.

The time the child spends with the father in Order 10 herein is not to commence until the father’s criminal proceedings are finalised and the Independent Children’s Lawyer informs the [C] in writing that Order 10 herein is to take effect.

12.

The father is to ensure that the paternal grandparents or either of them are present with him at all times that he spends with the child at the [C] and the paternal grandparents time at the child’s Day Care Centre or Library is suspended during this time unless otherwise agreed in writing by the parties.

THE COURT NOTES THAT:

(A) The Independent Children’s Lawyer will confirm with the parties, the dates when they are to attend upon the expert for interviews for the purpose of the report, following the outcome of the father’s criminal proceedings.

(B) The issue of the father’s time with the child, and more particularly whether that time once commenced should remain supervised, may be reconsidered following the release of the expert’s report.

(C) Orders were made on 22 August 2014 transferring these proceedings to the Family Court of Australia (“Family Court”) following the pronouncement of these Orders.

(D) This matter remains listed on 8 December 2014 at 10.00am for mention before a Registrar of the Family Court.

(E) Paragraphs 1 to 10, paragraph 12 and Notation A herein reflect a Minute of Orders proposed by the Independent Children’s Lawyer (“the Minute”) that were not opposed by the Applicant and the Respondent at the interim hearing of parenting matters conducted on 22 August 2014.

(F) Paragraph 11 herein was an Order determined by the Court (and proposed by the ICL in the Minute).

(G) The paternal grandparents have provided the Court with signed Undertakings to the effect that, during the time the Child spends with either of them that they will not discuss the Court proceedings nor denigrate or criticise the Applicant within the hearing or presence of the Child.

(H) Pursuant to section 65DA(2) 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 Annexure 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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