Feeney and Feeney and Ors - [2016] FCCA 3315

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEENEY & FEENEY & ORS

[2016] FCCA 3315

Catchwords:
FAMILY LAW – Parenting – interim hearing – conflicting recommendations Department of Health and Human Services and the family consultant.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 67Z, 69ZW

Federal Circuit Court of Australia Act1999 (Cth), s.39

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Applicant:

MS FEENEY

First Respondent:

MS C FEENEY

Second Respondent:

MR ROBERTSON

Third Respondent:

MS ROBERTSON

File Number:

MLC 8470 of 2016

Judgment of:

Judge Harland

Hearing date:

12 December 2016

Date of Last Submission:

12 December 2016

Delivered at:

Melbourne

Delivered on:

20 December 2016

REPRESENTATION

Counsel for the Applicant:

Ms Dunlop

Solicitors for the Applicant:

Cathleen Corridon & Associates

Counsel for the First Respondent:

Ms Bonney

Solicitors for the First Respondent:

MacGregor Solicitors

Counsel for the Second Respondent:

Ms Stavrakakis

Solicitors for the Second Respondent:

Victoria Legal Aid

Counsel for the Third Respondent:

Ms LaGreca

Solicitors for the Third Respondent:

Pentana Stanton Lawyers

Counsel for the Independent Children's Lawyer:

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Mckean Park Lawyers

ORDERS

That orders 6 and 8 of the orders made 22 September 2016 be discharged.
That the applicant shall spend time with the child, X born (omitted) 2015, from 9.00am Sunday until 4.00pm Tuesday each week and for this purpose changeovers take place at McDonald's (omitted) or such other location as may be agreed between the applicant and the third respondent in writing.
That the first and second respondents spend time with X as agreed with the third respondent, and in the case of the first respondent being at least twice a week.
That within 28 days the first and second respondent attend drug and counselling through Youth Support and Advising Services or such other services as recommended by the Independent Children’s Lawyer.
Pursuant to section 39 of the Federal Circuit Court of Australia Act1999 (Cth), these proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.

IT IS NOTED that publication of this judgment under the pseudonym Feeney & Feeney & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8470 of 2016

MS FEENEY

Applicant

And

MS C FEENEY

First Respondent

MR ROBERTSON

Second Respondent

MS ROBERTSON

Third Respondent

REASONS FOR JUDGMENT

X was born on (omitted) 2015 (“X”). The applicant Ms Feeney is X’s maternal grandmother. From the time of X’s birth until August 2016 she was X’s primary carer. The first respondent is X’s mother; Ms C Feeney who is 17 years old. The second respondent is X’s father; Mr Robertson is also 17 years old. The third respondent Ms Robertson is X’s paternal grandmother. X has been living in the paternal grandmother’s primary care since August 2016. For ease of reading I will refer to the applicant maternal grandmother as Ms Feeney, the mother…

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: [2016] FCCA 3315
Decision Date: 20 December 2016

CaseChat Overview and Summary

In *Feeney and Feeney and Ors*, heard by Judge Harland, the dispute concerned parenting orders for a child, X. The orders made on 22 September 2016 were being reviewed and potentially varied.

The court was required to determine the appropriate arrangements for X's time with the parties, specifically addressing the applicant's time with X, the time the first and second respondents would spend with X, and the need for the first and second respondents to attend drug and counselling services. The court also considered the transfer of the proceedings to another registry.

Judge Harland discharged previous orders and made new orders regarding the child's time with the applicant, specifying a weekly schedule and location for changeovers. The first and second respondents were also ordered to spend time with X as agreed with the third respondent, with a minimum frequency for the first respondent. Furthermore, the first and second respondents were directed to attend drug and counselling services within 28 days, with the specific provider to be recommended by the Independent Children’s Lawyer. Finally, the proceedings were transferred to the Melbourne Registry of the Family Court of Australia for listing with priority.

Orders

Orders of the court

That orders 6 and 8 of the orders made 22 September 2016 be discharged.

That the applicant shall spend time with the child, X born (omitted) 2015, from 9.00am Sunday until 4.00pm Tuesday each week and for this purpose changeovers take place at McDonald's (omitted) or such other location as may be agreed between the applicant and the third respondent in writing.

That the first and second respondents spend time with X as agreed with the third respondent, and in the case of the first respondent being at least twice a week.

That within 28 days the first and second respondent attend drug and counselling through Youth Support and Advising Services or such other services as recommended by the Independent Children’s Lawyer.

Pursuant to section 39 of the Federal Circuit Court of Australia Act 1999 (Cth), these proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.

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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