Garraghan and Westerfield (No 2) - [2014] FamCAFC 96

FAMILY COURT OF AUSTRALIA

GARRAGHAN & WESTERFIELD (NO 2)

[2014] FamCAFC 96

FAMILY LAW ─ APPEAL ─ CHILDREN ─ INTERIM PARENTING ORDERS – Whether the trial judge’s discretion miscarried by ordering the father to spend time with the child supervised by the maternal family at their home on one day and by the paternal grandmother at a public place on another ─Whether the father should be allowed to spend all of his time with the child supervised by the paternal grandmother at his home – Where the need for supervision was questionable and untested on the evidence – Where the risk of family violence is low – Where the father’s relationship with the maternal family is so fraught that it is likely to expose the child to some level of conflict – Where the trial judge did not adequately expose his reasons for making what appears to be inconsistent orders by allowing the paternal grandmother to supervise on some days but not others and to supervise in a public setting but not at the father’s home – Where it is necessary to first consider the nature of the alleged risk to the child in order to determine the circumstances under which supervised time would occur – HELD –Appeal allowed

Family Law Act 1975 (Cth): ss 60CA, 61DA, 60CC

Goode & Goode (2006) FLC 93-286

APPELLANT:

Mr Garraghan

RESPONDENT:

Ms Westerfield

INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid

FILE NUMBER:

SYC

4582

2013

APPEAL NUMBER:

171

2013

DATE DELIVERED:

6 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

3 June 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

25 October 2013

LOWER COURT MNC:

[2013] FCCA 1840

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Harper

SOLICITOR FOR THE APPELLANT:

Blanchfield Nicholls Partners

SOLICITOR FOR THE RESPONDENT:

Benetatos White

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

Orders

That the appeal against order 3 made by Judge Monahan on 25 October 2013 is allowed, and subject to order 2 of these orders, the orders are set aside.
Pending the further hearing and determination of the proceedings between the parties, or until further order, order 3 made by Judge Monahan on 25 October 2013 remains in force.
That the matter is remitted for rehearing before a judge other than Judge Monahan.
That there be no order for costs in relation to the appeal.
That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother and Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in 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 Garraghan and Westerfield (No 2)

Details

AGLC: Garraghan and Westerfield (No 2) [2014] FamCAFC 96
Case: [2014] FamCAFC 96
Decision Date: 6 June 2014

CaseChat Overview and Summary

The case involved Garraghan and Westerfield, with the latter appealing against parenting orders made by Judge Monahan. The core issue was the supervision arrangements for Westerfield's time with their child. Westerfield contended that the trial judge's discretion was misapplied by ordering supervised visits under inconsistent and untested circumstances. Specifically, Westerfield objected to the father spending supervised time with the child at the maternal family's home, and the paternal grandmother supervising at a public place, but not at the father's home. Westerfield argued that the need for supervision was questionable and that the risk of family violence was low. The father's relationship with the maternal family was deemed to be so contentious that it could expose the child to conflict. The trial judge's reasoning for the inconsistent orders was also criticised for lacking adequate justification.

The court found that the trial judge's orders for supervised visits were inconsistent and lacked sufficient reasoning. The need for supervision was questioned, particularly given the low risk of family violence. The court held that the trial judge did not adequately consider the nature of the alleged risk to the child when determining the circumstances for supervised visits. As a result, the court allowed the appeal and set aside the orders made by Judge Monahan, pending further proceedings. The matter was to be remitted for rehearing before a different judge. The court also granted costs certificates under the Federal Proceedings (Costs) Act 1981 to both parties and the Independent Children’s Lawyer, to cover the costs incurred during the appeal and the new trial.

Orders

Orders of the court

That the appeal against order 3 made by Judge Monahan on 25 October 2013 is allowed, and subject to order 2 of these orders, the orders are set aside.

Pending the further hearing and determination of the proceedings between the parties, or until further order, order 3 made by Judge Monahan on 25 October 2013 remains in force.

That the matter is remitted for rehearing before a judge other than Judge Monahan.

That there be no order for costs in relation to the appeal.

That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

The Court grants to the respondent mother and Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.

The Court grants to the parties and Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the parties and Independent Children’s Lawyer in respect of the costs incurred by them in relation to the new trial ordered.

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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