Fullager and Barberry - [2016] FCCA 1117

FEDERAL CIRCUIT COURT OF AUSTRALIA

FULLAGER & BARBERRY

[2016] FCCA 1117

Catchwords:
FAMILY LAW – Rice v Asplund threshold hearing – previous consent final parenting orders – relevant change in circumstances established.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Rice v Asplund (1979) FLC 90-725
Sampson v Hartnett [2015] FamCA 64
Morton & Berry [2014] FamCAFC 208
Poisat & Poisat [2014] FamCAFC 128
Goode & Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461

Applicant:

MS FULLAGER

Respondent:

MR BARBERRY

File Number:

CAC 462 of 2012

Judgment of:

Judge Newbrun

Hearing date:

3 September 2015

Date of Last Submission:

3 September 2015

Delivered at:

Parramatta

Delivered on:

1 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Matthews Folbigg Pty Ltd

Solicitors for the Respondent:

Ms Smith

ORDERS

The Father’s application in his Response to Initiating Application filed 9 September 2014, seeking to dismiss the mother’s Initiating Application filed 11 August 2014 and application seeking to dismiss the mother’s Further Amended Initiating Application filed 20 August 2015, are dismissed.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship, X born (omitted) 2011 (“the child”), attend upon a family consultant nominated by the Dispute Resolution Coordinator 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 by 30 January 2017.
The Family Report is 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 nature of the relationship between the child with each of the child’s parents and with significant other persons;
(c)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents; or
(ii)any other child, or significant person, with whom the child has been living.
(d)the practical difficulty and expense of the child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e)the capacity of each parent or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)the child’s maturity, sex and cultural background and any other characteristics of the child that the reporter thinks are relevant to the child’s welfare;
(g)any physical or psychological abuse that the child has been or is likely to be subjected to;
(h)any ill-treatment, family violence or other abusive behaviour that is directed toward a member of the child’s family, extended family or significant person and the likely impact of this on the child;
(i)each parent’s attitude to the child, and to the responsibilities of parenthood;
(j)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 Fullager and Barberry

Details

AGLC: Fullager and Barberry [2016] FCCA 1117
Case: [2016] FCCA 1117
Decision Date: 1 April 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Newbrun presided over proceedings between the Father and the Mother concerning their child, X. The Father had sought to dismiss the Mother's initiating application and her further amended initiating application.

The court was required to determine whether to dismiss the Father's applications to dismiss the Mother's proceedings. Additionally, the court needed to consider the arrangements for the child, including the preparation of a family report and the scheduling of an interim hearing to address specific issues.

Judge Newbrun dismissed the Father's applications to dismiss the Mother's proceedings. Pursuant to section 62G(2) of the *Family Law Act 1975* (Cth), the court ordered that the parties and the child attend upon a family consultant for the preparation of a family report, to be released by 30 January 2017. The report was to address a comprehensive list of matters relevant to the child's welfare and best interests, including the child's views, relationships, the impact of potential changes in circumstances, parental capacity, and any history of abuse or family violence. The proceedings were adjourned for mention following the release of the report, and an interim hearing was appointed for 22 November 2016 to address the child's time with each parent and the Mother's proposal to travel overseas with the child. The parties were directed to file a short Case Outline prior to the interim hearing.

Orders

Orders of the court

The Father’s application in his Response to Initiating Application filed 9 September 2014, seeking to dismiss the mother’s Initiating Application filed 11 August 2014 and application seeking to dismiss the mother’s Further Amended Initiating Application filed 20 August 2015, are dismissed.

Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship, X born (omitted) 2011 (“the child”), attend upon a family consultant nominated by the Dispute Resolution Coordinator 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 by 30 January 2017.

The Family Report is 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 nature of the relationship between the child with each of the child’s parents and with significant other persons;

(c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of the parents; or

(ii) any other child, or significant person, with whom the child has been living.

(d) the practical difficulty and expense of the child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(e) the capacity of each parent or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f) the child’s maturity, sex and cultural background and any other characteristics of the child that the reporter thinks are relevant to the child’s welfare;

(g) any physical or psychological abuse that the child has been or is likely to be subjected to;

(h) any ill-treatment, family violence or other abusive behaviour that is directed toward a member of the child’s family, extended family or significant person and the likely impact of this on the child;

(i) each parent’s attitude to the child, and to the responsibilities of parenthood;

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

(k) any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

The proceedings be adjourned for mention following the release of the Family Report at a date to be advised by the Court in due course.

The Court appoints an interim hearing for 22 November 2016 at 10:00am, in relation to the issues of the time to be spent by the child with the father and the mother’s proposals to travel overseas to (country omitted) with the child to visit extended family.

The parties shall, no later than 7 days prior to the interim hearing, file a short Case Outline setting out submissions under section 60CC of the Family Law Act 1975 (Cth), material relied upon and orders sought.

The proceedings are placed in the call over list on 16 September 2016 at 10:00am for matters awaiting a final hearing in 2017.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.