Fairburn and Janda - [2018] FCCA 2692

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIRBURN & JANDA

[2018] FCCA 2692

Catchwords:
FAMILY LAW – Parenting – interim hearing – time spent – allegations of sexual assault not substantiated – where there is emotional abuse – where there is a family violence order.

Legislation:

Family Law Act 1975 (Cth) s.68P

Applicant:

MR FAIRBURN

Respondent:

MS JANDA

File Number:

DNC 408 of 2014

Judgment of:

Judge Young

Hearing date:

31 August 2018

Date of Last Submission:

31 August 2018

Delivered at:

Darwin

Delivered on:

31 August 2018

REPRESENTATION

Counsel for the Applicant:

Ms Duggan

Solicitors for the Applicant:

Withnalls Lawyers

Counsel for the Respondent:

Ms Crook

Solicitors for the Respondent:

Maleys Barristers & Solicitors

ORDERS

UPON NOTING this is an Order that is inconsistent with the provision of a family violence order pursuant to section 68P of the Family Law Act 1975,

For the purposes of section 68P(3) of the Family Law Act 1975 a copy of this Order is to be provided to:
(a)The Registrar, Local Court at Darwin (File No);
(b)Commissioner of Police (Northern Territory Police); and
(c)Child Welfare Officer at Territory Families.

THE COURT ORDERS UNTIL FURTHER ORDER:

That upon an affidavit being filed by the paternal grandfather in relation to supervision, the child’s time with the father be reinstated.
That the child [X] born 2013 spend time with the father on the following basis, to be supervised by the paternal grandfather, Mr J:
(a)From 2.30pm to 5pm (or other such time suitable to CatholicCare NT) each Tuesday and Thursday, with the father to collect the child from school at the commencement of time and to effect handover at the conclusion of time at CatholicCare NT;
(b)Each alternate weekend from 9.30am to 5.30pm on Saturday and Sunday (or such other times suitable to CatholicCare NT), with handover to occur at Catholic Care NT, commencing on the first weekend that CatholicCare NT can accommodate; and
(c)In the event that the child is not otherwise spending time with the father, from 9.30am to 5.30pm on 22 September 2018 and 13 October 2018 for the purpose of the father attending a (hobby) performance with the child, with handover to occur at CatholicCare NT at times suitable to them
That the parties each forthwith enroll at CatholicCare NT to assess their suitability to take part in the handover program and each shall comply with all reasonable directions of any employee of CatholicCare NT and follow all guidelines regarding the use of the Service.
That each party is restrained from denigrating the other party in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.
That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born 2013 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the…

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 Fairburn and Janda

Details

AGLC: Fairburn and Janda [2018] FCCA 2692
Case: [2018] FCCA 2692
Decision Date: 31 August 2018

CaseChat Overview and Summary

This matter came before Judge Young concerning orders relating to the welfare and time spent with a child, [X], born in 2013. The proceedings involved the child's parents and the paternal grandfather, Mr J. The court noted that the orders made were inconsistent with a family violence order, necessitating specific notification procedures under section 68P of the *Family Law Act 1975*.

The court was required to determine the terms of supervised time the child would spend with the father, the conditions for reinstating this time, and the arrangements for handover. Additionally, the court needed to address the parties' engagement with a handover program, their conduct in the child's presence, and the preparation of a family report to inform future decisions regarding the child's best interests. The court also considered the dissemination of this report and the process for submitting material for the family consultant's consideration.

In its reasoning, the court ordered that supervised time with the father would be reinstated upon the filing of an affidavit by the paternal grandfather concerning supervision. Specific days and alternate weekends were allocated for this time, with handover arrangements to be managed through CatholicCare NT. Both parties were directed to enroll in CatholicCare NT's handover program and comply with its directions. The court also imposed a restraint on the parties denigrating each other in the child's presence. Crucially, pursuant to section 62G(2) of the *Family Law Act 1975*, the parties and the child were ordered to attend upon a family consultant for the preparation of an urgent family report, which was to address the child's views, relevant legislative considerations under sections 60CC, 61DA, and 65DAA, and any other matters pertinent to the child's welfare.

The court made further orders regarding the notification of various authorities of the current orders, the process for submitting documents to the family consultant, and the confidentiality of the family report, including specific provisions under section 121 of the *Family Law Act 1975*. The matter was adjourned for further consideration.

Orders

Orders of the court

UPON NOTING this is an Order that is inconsistent with the provision of a family violence order pursuant to section 68P of the Family Law Act 1975,

For the purposes of section 68P(3) of the Family Law Act 1975 a copy of this Order is to be provided to:

(a) The Registrar, Local Court at Darwin (File No);

(b) Commissioner of Police (Northern Territory Police); and

THE COURT ORDERS UNTIL FURTHER ORDER:

That upon an affidavit being filed by the paternal grandfather in relation to supervision, the child’s time with the father be reinstated.

That the child [X] born 2013 spend time with the father on the following basis, to be supervised by the paternal grandfather, Mr J:

(a) From 2.30pm to 5pm (or other such time suitable to CatholicCare NT) each Tuesday and Thursday, with the father to collect the child from school at the commencement of time and to effect handover at the conclusion of time at CatholicCare NT;

(b) Each alternate weekend from 9.30am to 5.30pm on Saturday and Sunday (or such other times suitable to CatholicCare NT), with handover to occur at Catholic Care NT, commencing on the first weekend that CatholicCare NT can accommodate; and

(c) In the event that the child is not otherwise spending time with the father, from 9.30am to 5.30pm on 22 September 2018 and 13 October 2018 for the purpose of the father attending a (hobby) performance with the child, with handover to occur at CatholicCare NT at times suitable to them

That the parties each forthwith enroll at CatholicCare NT to assess their suitability to take part in the handover program and each shall comply with all reasonable directions of any employee of CatholicCare NT and follow all guidelines regarding the use of the Service.

That each party is restrained from denigrating the other party in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.

That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born 2013 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised to the parties and the Court requests that the report be prepared on a urgent basis if possible.

That the family report to deal with the following matters:

(a) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b) the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

10.

That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

11.

That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference.

NOTING:

A. At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C. In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

12.

That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

13.

That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

14.

That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 1 October 2018 as follows:

(a) setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b) annexing such material as is considered relevant, with

15.

That the matter be adjourned to 10 December 2018 at 11.00am for further consideration.

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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