Garner and Garner - [2016] FamCA 630

FAMILY COURT OF AUSTRALIA

GARNER & GARNER

[2016] FamCA 630

FAMILY LAW – CHILDREN – interim orders – where the father seeks orders for gradually increasing time with the child – where the mother seeks orders for the father to spend supervised time with the child – where there are allegations of family violence – where the mother has tendered audio recordings – where there are psychological and psychiatric assessments of the father – where the parties are in dispute as to a supervisor – where the Court declines to issue an evidence certificate – where the Court does not consider that the father presents a risk – where the father’s time is initially supervised – where continued supervision is dependent upon the report of the psychiatrist.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 4AB, 60B 60CA, 60CC, 62G(2), 65DAA, 61DA, 69ZN, 69ZQ

Janssen & Janssen [2016] FamCA 345
Meiko Australia Pacific Pty Ltd v Hinchcliff [2009] NSWSC 354
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Garner

RESPONDENT:

Ms Garner

FILE NUMBER:

ADC

4776

2015

DATE DELIVERED:

5 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

18 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs West

SOLICITOR FOR THE APPLICANT:

Alderman Redman Lawyers and Mediators

COUNSEL FOR THE RESPONDENT:

Ms O'Connor

SOLICITOR FOR THE RESPONDENT:

SE Lawyers

Orders

That the parties have equal shared parental responsibility for the child B (“the child”) born … 2015.
That the child live with the mother.
That the child spend time with the father each Wednesday and Saturday from 9 am to 12 noon conditional on the father’s time being supervised by the child’s paternal grandparents or each of them subject to the parties having successfully completed an intake process with Mr C (psychologist) whereupon he will thereafter supervise the father’s time for four (4) periods.
That the parties shall share equally in the cost of Mr C undertaking the supervision of the father’s time with the child.
Following the conclusion of the supervised time by Mr C and provided that Dr D will have given a written indication that having listened to the audio recording made 17 May 2015, 19 October and 20 October 2015, there is to be no material change to the report already provided by him, the child shall spend time with the father from 9 am to 1 pm on each Wednesday and Saturday without supervision.
That the father spend time with the child at such other time as the parties may agree.
That handover of the child both at the commencement of the father’s time and at the conclusion thereof shall be at McDonald’s restaurant, Suburb E or at such other place as the parties may agree.
That the parties be restrained and an injunction is granted restraining each of them from approaching or remaining in the vicinity of any place at which they may reside or their separate place of employment SAVE…

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 Garner and Garner

Details

AGLC: Garner and Garner [2016] FamCA 630
Case: [2016] FamCA 630
Decision Date: 5 August 2016

CaseChat Overview and Summary

In the matter of Garner and Garner, Berman J of the Federal Circuit Court of Australia made orders concerning the parental responsibility and time arrangements for a child born in 2015. The dispute concerned the arrangements for the child’s living arrangements and time spent with each parent.

The court was required to determine the nature of parental responsibility, where the child would live, and the specific arrangements for the child to spend time with the father. Additionally, the court needed to address the supervision of the father’s time with the child, the costs associated with that supervision, and the conditions under which supervision could cease. The court also made orders restraining the parties from approaching each other’s residences or places of employment, except as necessary to give effect to the orders or agreed arrangements.

Berman J ordered that the parties have equal shared parental responsibility for the child. The child was ordered to live with the mother. The father was granted time with the child each Wednesday and Saturday, initially supervised by the paternal grandparents or a psychologist, Mr C, following an intake process. The parties were to share the costs of Mr C’s supervision. The orders stipulated that after the supervised time concluded, and subject to a psychologist, Dr D, confirming no material change to a previous report based on audio recordings, the father's time would become unsupervised. The court also made provisions for additional time by agreement and specified handover locations.

Orders

Orders of the court

That the parties have equal shared parental responsibility for the child B (“the child”) born … 2015.

That the child live with the mother.

That the child spend time with the father each Wednesday and Saturday from 9 am to 12 noon conditional on the father’s time being supervised by the child’s paternal grandparents or each of them subject to the parties having successfully completed an intake process with Mr C (psychologist) whereupon he will thereafter supervise the father’s time for four (4) periods.

That the parties shall share equally in the cost of Mr C undertaking the supervision of the father’s time with the child.

Following the conclusion of the supervised time by Mr C and provided that Dr D will have given a written indication that having listened to the audio recording made 17 May 2015, 19 October and 20 October 2015, there is to be no material change to the report already provided by him, the child shall spend time with the father from 9 am to 1 pm on each Wednesday and Saturday without supervision.

That the father spend time with the child at such other time as the parties may agree.

That handover of the child both at the commencement of the father’s time and at the conclusion thereof shall be at McDonald’s restaurant, Suburb E or at such other place as the parties may agree.

That the parties be restrained and an injunction is granted restraining each of them from approaching or remaining in the vicinity of any place at which they may reside or their separate place of employment SAVE as may be necessary to give effect to the following:-

(a) These orders;

(b) Any agreement between the parties in writing as to the arrangements in respect of the child;

(c) In respect of the parties separate places of employment, as may be necessary arising out of the ordinary course and requirement of their employment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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