Galloway & Duke - [2014] FamCA 569

FAMILY COURT OF AUSTRALIA

GALLOWAY & DUKE [2014] FamCA 569

FAMILY LAW – CHILDREN – Interim parenting – Where the parties have agreed to the child remaining in the father’s care on an interim basis – Whether the father be permitted to enrol the child in a different school – What time should the child spend with the mother – Where the child was previously in the primary care of the mother until the child made disclosures to the father of family violence and abuse of both the child and the mother in the mother’s home by a new partner – Protection of the child from risk of harm

Family Law Act 1975 (Cth) s 60CA

Dieter & Dieter [2011] FamCAFC 82

George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Rice & Asplund (1979) FLC 90-725
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Galloway

RESPONDENT: Ms Duke

FILE NUMBER: PAC 1309 of 2009

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Suburb D

PLACE HEARD: Suburb D

JUDGMENT OF: Hannam J

HEARING DATE: 21 July 2014
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weaver

SOLICITOR FOR THE APPLICANT: Claremont Legal

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Service (NSW/ACT) Limited
Orders
(1)The handwritten document headed Minute of Order and signed by the parties shall become Court’s Exhibit “A” in today’s proceedings.
(2)By consent, orders are made in accordance with paragraphs 1, 2, 5 to 9 of Court’s Exhibit “A” as follows:
(1) The orders made 25 May 2010 are hereby suspended.
(2)The child, B born … 2007 (“the child”) shall live with the father.

(5)Pursuant to Family Law Act 1975 (Cth), s68B, and for the personal protection of the child, Mr C born … 1966 is hereby restrained from communicating or approaching or remaining in the presence of the child.
(6)Pursuant to Family Law Act 1975 (Cth) s68C a police officer, including a member of the NSW Police, may arrest any person the police officer believes on reasonable grounds has act in breach of order 5 and such arrest may be made without warrant.

(7)The mother is hereby restrained from causing or permitting the child to communicate with or remain in the presence of Mr C born … 1966.

(8)Each party is hereby restrained from physically disciplining the child and shall not permit any third party to physically discipline the child.

(9)Each party is hereby restrained from denigrating the other parent within the presence of the child and shall remove the child from the presence of any third person who denigrates the other parent.

(3)That B born … 2007 (“the child”) spend time with her mother on each day of each weekend, that is, Saturday for six hours and on Sunday for 4 hours, and the times are to be as agreed between the parties, and failing agreement, between 10.00 am and 4.00 pm on Saturday and 12.00 pm to 4.00pm on Sunday.
(4)Changeover is to be effected by 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 Galloway & Duke

Details

AGLC: Galloway & Duke [2014] FamCA 569
Case: [2014] FamCA 569
Decision Date: 21 July 2014

CaseChat Overview and Summary

This matter concerned orders made by Hannam J in the Federal Circuit and Family Court of Australia concerning the living arrangements and protection of a child. The proceedings involved the father and mother of the child, B, born in 2007. The dispute centred on the welfare of the child, including issues of contact, protection from specific individuals, and parental conduct.

The court was required to determine several legal issues, including the appropriate orders for the child's residence and contact with each parent. Crucially, the court had to consider orders for the personal protection of the child, specifically restraining an individual, Mr C, from communicating with or approaching the child, and restraining the mother from permitting the child to be in Mr C's presence. The court also addressed the issue of physical discipline and denigration of a parent in the child's presence. Furthermore, the court considered the independent representation of the child's interests and the potential intervention of the Secretary of the NSW Department of Family and Community Services.

The court made orders by consent, reflecting a Minute of Order signed by the parties. These orders suspended previous arrangements and stipulated that the child would live with the father. Significant protective orders were made under sections 68B and 68C of the *Family Law Act 1975* (Cth), restraining Mr C and the mother from allowing contact with him, with provisions for arrest without warrant for breaches. Orders were also made prohibiting physical discipline and denigration of parents. The child was to spend time with the mother on weekends, with specific times and changeover arrangements. The court also ordered independent legal representation for the child, requested intervention from the NSW Department of Family and Community Services, and granted leave for the mother to amend her response. Further orders facilitated the appointment and role of the Independent Children's Lawyer and the intervention of the Secretary.

Orders

Orders of the court

(1) The handwritten document headed Minute of Order and signed by the parties shall become Court’s Exhibit “A” in today’s proceedings.

(2) By consent, orders are made in accordance with paragraphs 1, 2, 5 to 9 of Court’s Exhibit “A” as follows:

(1) The orders made 25 May 2010 are hereby suspended.

(2) The child, B born … 2007 (“the child”) shall live with the father.

(5) Pursuant to Family Law Act 1975 (Cth), s68B, and for the personal protection of the child, Mr C born … 1966 is hereby restrained from communicating or approaching or remaining in the presence of the child.

(6) Pursuant to Family Law Act 1975 (Cth) s68C a police officer, including a member of the NSW Police, may arrest any person the police officer believes on reasonable grounds has act in breach of order 5 and such arrest may be made without warrant.

(7) The mother is hereby restrained from causing or permitting the child to communicate with or remain in the presence of Mr C born … 1966.

(8) Each party is hereby restrained from physically disciplining the child and shall not permit any third party to physically discipline the child.

(9) Each party is hereby restrained from denigrating the other parent within the presence of the child and shall remove the child from the presence of any third person who denigrates the other parent.

(3) That B born … 2007 (“the child”) spend time with her mother on each day of each weekend, that is, Saturday for six hours and on Sunday for 4 hours, and the times are to be as agreed between the parties, and failing agreement, between 10.00 am and 4.00 pm on Saturday and 12.00 pm to 4.00pm on Sunday.

(4) Changeover is to be effected by the father delivering and picking the child up at a place to be advised by text message by the mother to the father two hours prior to time together commencing.

(5) Pursuant to section 68L of the Family Law Act 1975 (Cth), interests of the child [B born … 2007] are to be independently represented by a lawyer in these proceedings.

(6) Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances.

(7) Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

(8) Leave is granted to the mother to file an Amended Response and Affidavit.

ORDERS MADE IN CHAMBERS

(9) The Legal Aid Commission of New South Wales, Suburb D Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the child’s interests.

(10) The parties are to provide to the Suburb D Office of the Legal Aid Commission of New South Wales, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

(11) Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he/she considers relevant to the issues before the Court.

(12) Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

(13) The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

(14) In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention.

(15) Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

(16) Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

Notations

(17) The father has given an undertaking in Court that he will not enrol the child in any other school.

(18) Mr C’s date of birth is … 1966 and has been inserted into paragraphs 2(5) and (7).

(19) An order was previously made by the Registrar for participation in the Magellan project.

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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