Ferguson and Leishmann - [2017] FCCA 2152

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERGUSON & LEISHMANN

[2017] FCCA 2152

Catchwords:
FAMILY LAW – Interim arrangements for care of children 10 & 8 – children have previously been in the care of mother living in Adelaide – father lives in Perth – mother arranges for children to live in Perth with father as a consequence of her exposure to family violence – father asserts mother’s care represents risk to children – nature of interim hearing – assessment of risk – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4(1), 60CA, 60CC

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Deiter & Deiter [2011] FamCAFC 82

Applicant:

MS FERGUSON

Respondent:

MR LEISHMANN

File Number:

ADC 4375 of 2012

Judgment of:

Judge Brown

Hearing date:

23 August 2017

Date of Last Submission:

23 August 2017

Delivered at:

Adelaide

Delivered on:

23 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr G. Hemsley

Solicitors for the Applicant:

Legal Services Commission of South Australia

Counsel for the Respondent:

Ms Holgate

Solicitors for the Respondent:

Lewis Blyth & Hooper

ORDERS

Pursuant to section 11F of the Family Law Act the parties and the children attend a child inclusive family dispute resolution conference at the Family Court of Western Australia, (Family Court Counselling and Consultancy Service, Level 3, 150 Terrace Road, Perth, Western Australia) with Ms K, a family consultant, on Wednesday, 18 October 2017 on a date and time to be advised, to discuss the care, welfare and development of the children in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance NOTING the mother can attend by phone/video if she requests by no later than 9 October 2017.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The children X born (omitted) 2007 and Y born (omitted) 2009 live with the father in Perth.
The mother spend time with the children in Perth during the September/October school holidays at such times and on such conditions as the parties agree from time to time.
The mother communicate electronically with the children on such terms and conditions as the parties agree from time to time.
A copy of the oral reasons provided today be transcribed and provided to the parties.
Further consideration of the matter is adjourned to 6 November 2017 at 9:30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4375 of 2012

MS FERGUSON

Applicant

And

MR LEISHMANN

Respondent

REASONS FOR JUDGMENT

Introduction

This is a difficult case, which arises at the interim stage, against a background of significant emergency involving serious issues of family violence. It also involves the interstate relocation of two children far away from…

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 Ferguson and Leishmann

Details

AGLC: Ferguson and Leishmann [2017] FCCA 2152
Case: [2017] FCCA 2152
Decision Date: 23 August 2017

CaseChat Overview and Summary

In the Family Court of Western Australia, Judge Brown presided over a dispute between Ferguson and Leishmann concerning the care, welfare, and development of their two children. The proceedings involved an application for orders relating to the children's living arrangements and the mother's contact with them.

The court was required to determine the interim living arrangements for the children and the terms of the mother's communication and time with them, pending further resolution of the dispute. A key issue was the facilitation of dispute resolution between the parents regarding these matters.

Judge Brown ordered that the parties attend a child-inclusive family dispute resolution conference facilitated by a family consultant. Until further order, the children were to live with the father in Perth. The mother was granted permission to spend time with the children in Perth during the September/October school holidays, subject to the parties' agreement, and to communicate electronically with them on mutually agreed terms. The matter was adjourned for further directions.

Orders

Orders of the court

Pursuant to section 11F of the Family Law Act the parties and the children attend a child inclusive family dispute resolution conference at the Family Court of Western Australia, (Family Court Counselling and Consultancy Service, Level 3, 150 Terrace Road, Perth, Western Australia) with Ms K, a family consultant, on Wednesday, 18 October 2017 on a date and time to be advised, to discuss the care, welfare and development of the children in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance NOTING the mother can attend by phone/video if she requests by no later than 9 October 2017.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The children X born (omitted) 2007 and Y born (omitted) 2009 live with the father in Perth.

The mother spend time with the children in Perth during the September/October school holidays at such times and on such conditions as the parties agree from time to time.

The mother communicate electronically with the children on such terms and conditions as the parties agree from time to time.

A copy of the oral reasons provided today be transcribed and provided to the parties.

Further consideration of the matter is adjourned to 6 November 2017 at 9:30am for directions.

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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