Fitzsimmons and Fenwick - [2017] FCCA 115

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZSIMMONS & FENWICK

[2017] FCCA 115

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged eight – existing orders envisage child spending substantial and significant periods of time in care of the mother – mother alleges child has made disclosure of sexual abuse – mother seeks suspension of father’s time – application opposed by father – allegation denied – assessment of risk at interim stage – is risk of harm to child unacceptable if she spends time with father – what is proportionate response to degree of risk identified – questions to be asked – implications for child’s primary carer – nature of supervision – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 68L, 69ZW

Cases cited:
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
M & M (1988) FLC 91-979
B & B (1988) FLC 91-957
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
B & B (1993) FLC 92-357

Applicant:

MS FITZSIMMONS

Respondent:

MR FENWICK

File Number:

ADC 2749 of 2010

Judgment of:

Judge Brown

Hearing date:

19 January 2017

Date of Last Submission:

19 January 2017

Delivered at:

Adelaide

Delivered on:

25 January 2017

REPRESENTATION

Counsel for the Applicant:

Ms Read

Solicitors for the Applicant:

Lamont Black

Counsel for the Respondent:

Mr Oliveri

Solicitors for the Respondent:

Oliveri Rosa Beachside Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The orders by which the father spends time with the child of the relationship X born (omitted) 2009 are suspended.
The father spend time with the child on each Sunday commencing on 29 January 2017 between the hours of 10:00am and 5:00pm and on Australia Day 2017 between those hours subject to the following conditions:
(a)The time take place in the presence of Ms D and subject to her direct supervision; and
(b)An injunction issue and the father be retrained from viewing any video material which is not PG in classification during such periods.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born (omitted) 2009 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Pursuant to section 69ZW of the Family Law Act, the Department for…

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 Fitzsimmons and Fenwick

Details

AGLC: Fitzsimmons and Fenwick [2017] FCCA 115
Case: [2017] FCCA 115
Decision Date: 25 January 2017

CaseChat Overview and Summary

This matter concerned an application before Judge Brown regarding the parenting arrangements for a child, X, born in 2009. The dispute involved the father's time with the child, with specific orders being made concerning the nature and supervision of that time, as well as the appointment of an Independent Children's Lawyer.

The court was required to determine the appropriate orders for the child's time with the father, considering the need for supervision and restrictions on the father's access to certain types of video material. Additionally, the court needed to consider the appointment of an Independent Children's Lawyer to represent the child's interests and the provision of relevant information by government agencies.

Judge Brown ordered that the father's existing time with the child be suspended. New arrangements were put in place for the father to spend time with the child on Sundays and Australia Day 2017, strictly under the direct supervision of Ms D. Furthermore, an injunction was issued restraining the father from viewing any video material not classified as PG during these periods. The court also ordered the appointment of an Independent Children's Lawyer pursuant to s 68L of the *Family Law Act 1975*, directing the parties' solicitors to forward relevant documents to the Legal Services Commission of South Australia to facilitate this appointment. The Department for Child Protection and South Australian Police were ordered to provide specific documents relating to any notifications of suspected child abuse or family violence concerning the child by 24 March 2017. The matter was adjourned for further consideration.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER:

The orders by which the father spends time with the child of the relationship X born (omitted) 2009 are suspended.

The father spend time with the child on each Sunday commencing on 29 January 2017 between the hours of 10:00am and 5:00pm and on Australia Day 2017 between those hours subject to the following conditions:

(a) The time take place in the presence of Ms D and subject to her direct supervision; and

(b) An injunction issue and the father be retrained from viewing any video material which is not PG in classification during such periods.

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born (omitted) 2009 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection and the South Australian Police are ordered to provide to the court on or before 24 March 2017 the following documents:

(a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

(b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

Further consideration of this matter is adjourned to 4 April 2017 at 9:30am.

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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