Fasham & Rina - [2022] FedCFamC2F 134

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fasham & Rina [2022] FedCFamC2F 134

File number(s): ADC 580 of 2019

Judgment of: JUDGE DICKSON

Date of judgment: 11 February 2022

Catchwords: FAMILY LAW – Parenting – where the final hearing is part heard – where both the parties cases have closed and only the Court Child Expert is to give evidence – where father filed an Application in a Proceeding during the course of final hearing – where father seeks various orders including for an observed interaction to take place between him and the three subject children of the proceedings – where the father has not seen or spent time with the children for over three years – where mother’s evidence under cross-examination presents a different version of events compared to that set out in her court documents – where the Court is concerned that there was no observed interaction between the father and the children in the two Family Reports prepared for these proceedings – where it is in the best interests of the children for there to be an observed interaction between the father and the children before final parenting orders are made.

Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.69ZL, 69ZR, 69ZS

Division: Division 2 Family Law

Number of paragraphs: 42

Date of hearing: 11 February 2022

Place: Adelaide

Counsel for the Applicant: Ms Lindsay

Solicitor for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Ms Betro

Solicitor for the Respondent: Andersons Solicitors

Counsel for the Independent Children's Lawyer: Mr Frazer

Solicitor for the Independent Children's Lawyer: Legal Services Commission
ORDERS

ADC 580 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FASHAM

Applicant

AND:
MS RINA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

11 FEBRUARY 2022

UPON NOTING THAT the proceedings were conducted in person
UPON FURTHER NOTING THAT

That counsel are currently conferring with respect to the List of Documents to be provided to Court Child Expert Ms B in anticipation of her evidence when the Trial resumes on 30 March 2022.

Counsel will forward to the Chambers of Judge Dickson a List of Agreed Documents to be forwarded by the Court to Ms B by way of email no later than Friday 18 February 2022.

The advice of the Mother this day given to this Honourable Court that the children attended at the school named by Counsel for the Mother referred to in a written advice given to the Court his day for Term 4, 2021 and will continue to attend at that school in 2022 in Victoria.

BY CONSENT OF THE MOTHER AND NOT OPPOSED BY THE FATHER THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.The children X born in 2010, Y born in 2012 and Z born in 2013 continue to attend at the school that they attended for the duration of Term 4, 2021 in Victoria.
2.The Mother be restrained and injunction granted restraining her from causing the children or…

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 Fasham & Rina

Details

AGLC: Fasham & Rina [2022] FedCFamC2F 134
Case: [2022] FedCFamC2F 134
Decision Date

CaseChat Overview and Summary

The case of Fasham & Rina was heard by Judge Dickson in the Federal Circuit and Family Court of Australia, Division 2. The case involved a dispute between the father, Mr. Fasham, and the mother, Ms. Rina, over parenting arrangements for their three children. The key legal issues revolved around the best interests of the children and whether an observed interaction between the father and the children should take place before final parenting orders were made. The court was also concerned about the lack of observed interaction between the father and the children in the two Family Reports prepared for these proceedings. The court held that it was in the best interests of the children for there to be an observed interaction between the father and the children before final parenting orders were made. The court ordered that the children continue to attend the school they had been attending, that the mother deliver the children to Court Children's Services in Adelaide, and that an observed interaction take place between the father, the paternal grandmother, and the children in the presence of a Court Child Expert for a period of up to two hours. The court further restrained the mother from communicating with the children by mobile telephone or any other electronic device that the children may bring with them to the appointment.

The court's reasoning was based on the extensive evidence heard over six days of trial, the fact that an experienced Court Child Expert would be present during the observed interaction, and the paternal grandmother's presence. The court also considered it appropriate to introduce a different Court Child Expert due to the impracticality and expense of the parties and children traveling back to Canberra for any further observed interaction to occur with the previous Court Child Expert. The court declined to make any further or other orders sought by the father in his Application in a Proceeding filed on 9 February 2022, as the evidence had not concluded, and it was not in the children's best interests for interim orders to be made pending a conclusion of the evidence and proper consideration of the evidence.

Orders