F and F - [2006] FMCAfam 616

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & F

[2006] FMCAfam 616

FAMILY LAW – Parenting – father’s time spent with child to be more limited or supervised – changeover conditions – appointment of Independent Children’s Lawyer.

Family Law Act 1975 (Cth), ss.60CC(2) and (3), 65DA(2), 68L
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Re K (1994) FLC 92-461

Applicant:

KAF

Respondent:

IPF

File Number:

SYM 5417 of 2006

Judgment of:

Lucev FM

Hearing date:

11 October 2006

Date of Last Submission:

11 October 2006

Delivered at:

Perth

Delivered on:

13 November 2006

REPRESENTATION

Applicant Mother appeared for herself

Respondent Father appeared for himself

ORDERS

All previous Orders be discharged.
The child JRF, born 6 July 2004, spend time with the father as follows:
(a)each Wednesday from 25 October 2006 from 4.00 pm until 7.00 pm;
(b)each Sunday from 28 October 2006 from 9.00 am until 5.00 pm,
and changeover shall occur at Interrelate Children’s Contact Service, 160 Bath Road Kirrawee (“Contact Centre”) unless the parties otherwise agree in writing to an alternative changeover venue, and provided that if the dates in (a) and (b) are not dates convenient to the Contact Centre for the commencement of changeover, those dates may be varied by up to 14 days by written notice from the Director of Contact Centre to the parties and the Independent Children’s Lawyer.
Each party must:
(a)contact the Contact Centre by 4.00 pm 16 October 2006 and arrange an appointment for assessment for suitability for supervised changeovers;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised changeovers;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide changeovers as set out in Order 2 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 3 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers the time the father is to spend with the child as set out in Order 2 is to be implemented by the father collecting the child from the Contact Centre at the start of the time spent with the child and returning the child to the same place at the end of time spent with the child.
In the event that the Contact Centre offers supervised changeovers only at times which are less regular than specified in Order 2 then the time the child spends with the father shall occur at the times which are offered by the Contact Centre.
The mother, KAF, deliver the child to and collect the child from the Contact Centre on the days specified in Order 2 at times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity unless otherwise agreed…

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 F and F

Details

AGLC: F and F [2006] FMCAfam 616
Case: [2006] FMCAfam 616
Decision Date: 13 November 2006

CaseChat Overview and Summary

The matter of F and F was heard in the Family Court of Australia. The dispute centred around the parenting arrangements for the child, JRF, born on 6 July 2004. The primary concern was the implementation of supervised contact between the child and the father, as well as the broader parenting arrangements that would ensure the child's safety and well-being.

The legal issues the court had to resolve included determining the frequency and duration of supervised contact between the father and the child, the specific venue for these supervised interactions, and the procedures to be followed in case of any changes in the contact arrangements. Additionally, the court needed to address the obligations of both parents concerning the supervised contact, the role of the Independent Children’s Lawyer, and the responsibilities of the Contact Centre. The court also had to consider the implications of the Family Law Act 1975 regarding the separate representation of the child.

In reaching its decision, the court carefully evaluated the evidence presented by both parents and the recommendations from the Independent Children’s Lawyer and the Contact Centre. The court determined that supervised contact was necessary to ensure the child's safety. It set specific times for the father to spend with the child, with changeovers to occur at the Interrelate Children’s Contact Service unless otherwise agreed. The court also outlined the steps both parents must take to facilitate these arrangements, including attending assessments for suitability for supervised contact and complying with the rules and directions of the Contact Centre. The court further addressed the potential for variations in the contact arrangements based on the availability of the Contact Centre and the need for separate representation for the child. The court noted the father's provision of a mobile number for communication with the mother and directed the mother to provide the child's comfort items for supervised contact sessions.

Orders

Orders of the court

All previous Orders be discharged.

The child JRF, born 6 July 2004, spend time with the father as follows:

(a) each Wednesday from 25 October 2006 from 4.00 pm until 7.00 pm;

(b) each Sunday from 28 October 2006 from 9.00 am until 5.00 pm,

and changeover shall occur at Interrelate Children’s Contact Service, 160 Bath Road Kirrawee (“Contact Centre”) unless the parties otherwise agree in writing to an alternative changeover venue, and provided that if the dates in (a) and (b) are not dates convenient to the Contact Centre for the commencement of changeover, those dates may be varied by up to 14 days by written notice from the Director of Contact Centre to the parties and the Independent Children’s Lawyer.

Each party must:

(a) contact the Contact Centre by 4.00 pm 16 October 2006 and arrange an appointment for assessment for suitability for supervised changeovers;

(b) attend the assessment;

(d) comply with all reasonable rules of the Contact Centre; and

(e) comply with all reasonable requests or directions of the staff of the Contact Centre.

If after the assessment intake procedure the Contact Centre is unable or unwilling to provide changeovers as set out in Order 2 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 3 days written notice to the other party and to the Court.

If after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers the time the father is to spend with the child as set out in Order 2 is to be implemented by the father collecting the child from the Contact Centre at the start of the time spent with the child and returning the child to the same place at the end of time spent with the child.

In the event that the Contact Centre offers supervised changeovers only at times which are less regular than specified in Order 2 then the time the child spends with the father shall occur at the times which are offered by the Contact Centre.

The mother, KAF, deliver the child to and collect the child from the Contact Centre on the days specified in Order 2 at times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity unless otherwise agreed in writing by the Director of the Contact Centre.

The father must not attend the Contact Centre or its vicinity before the time spent with the child is to start and must promptly leave the Contact Centre or its vicinity at the time the time spent with the child is to end.

If during the currency of these orders the Contact Centre declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 3 days written notice to the other party, the Independent Children’s Lawyer (where it is not that lawyer giving the notice) and the Court restore the matter to the list.

10.

If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the parties and the Independent Children’s Lawyer have leave to list the proceedings in chambers urgently for consent orders to be made.

11.

The period of time spent with the child provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, the time spent with the child shall occur at times when the services can be provided by the Contact Centre.

12.

The Director of the Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 3 days written notice to the other party, the Independent Children’s Lawyer (where it is not that lawyer giving the notice) and the Court.

13.

Pursuant to s.68L of the Family Law Act 1975 that the child be separately represented and I request that the Legal Aid Commission of New South Wales provide that representation.

14.

Each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all applications and affidavits filed by the party together with all existing orders and copies of any relevant reports.

15.

Pursuant to s.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 Attachment A and these particulars are included in these orders.

THE COURT NOTES THAT:

16.

The father has provided a mobile telephone number on which the mother can contact the father at any time and the father will communicate with the mother by telephone on her mobile number.

17.

The mother provide the Contact Centre with J’s comfort item(s) on each occasion that J spends time with the father.

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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