Godfrey and Bradley - [2014] FCCA 1041

FEDERAL CIRCUIT COURT OF AUSTRALIA

GODFREY & BRADLEY

[2014] FCCA 1041

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged eight years and ten months – nature of interim hearing – both parties make allegations of serious family violence – statutory definition of family violence – allegations of neglect and exposure to sexual abuse – need for independent children’s lawyer – implications of final family violence order – application of presumption of equal shared parental responsibility – assessment of section 60CC factors – best interests.

Legislation:

Family Law Act 1975, ss.4AB, 60CC, 61DA, 65DAA, 67ZBB

Godfrey v Police (No.3) [2013] SASC 93
Godfrey v Police (No.4) [2014] SASC 41
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Godfrey v Police (No 2) [2013] SASC 50
Goode & Goode (2006) FLC 93-286
Amador & Amador (2009) 43 Fam LR 268
JG & BG (1994) 18 Fam LR 255

Applicant:

MR GODFREY

Respondent:

MS BRADLEY

File Number:

ADC 1020 of 2014

Judgment of:

Judge Brown

Hearing date:

19 May 2014

Date of Last Submission:

19 May 2014

Delivered at:

Adelaide

Delivered on:

23 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

SPK Legal

Counsel for the Respondent:

Mr Boehm

Solicitors for the Respondent:

White Berman

ORDERS

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) 2005 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.
Further consideration of the matter is adjourned to 18 July 2014 at 9.30 am for directions.

UNTIL FURTHER OR OTHER ORDER:

The child of the relationship X born (omitted) 2005 (hereinafter referred to as “the child”) live with the mother.
The child spend time with the father as follows:
(a)On alternate Thursdays nominally commencing on 22 May 2014 from the conclusion of school (or 3.30 pm if school is not in session) until the commencement of school the following Friday (or 9.00 am if school is not in session);
(b)On alternate weekends from the conclusion of school Friday (or 3.30 pm if school is not in session) until the commencement of school the following Monday or Tuesday if that Monday is a public holiday but in the event school is not in session following the weekend until 9.00 am on that Monday or Tuesday commencing 30 May 2014; and
(c)From 8.00 am to 5.00 pm on Saturday 24 May 2014.
The child be exchanged…

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.

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Details

Case: [2014] FCCA 1041
Decision Date: 23 May 2014

CaseChat Overview and Summary

In the matter of *Godfrey and Bradley*, heard before Judge Brown, the dispute concerned the interim care arrangements for a child, X, born in 2005. The court was required to make orders regarding the child's living arrangements, time spent with each parent, communication between the parties, and other welfare-related matters pending further consideration.

The court determined several legal issues, including the appointment of an Independent Children's Lawyer to represent the child's interests, the establishment of interim parenting orders for residence and time, and the imposition of injunctions to regulate the parties' conduct and communication concerning the child. The court also considered the need for family dispute resolution.

Applying the principles of the *Family Law Act 1975*, the court ordered the appointment of an Independent Children's Lawyer and set out detailed interim parenting arrangements, including residence with the mother and specific time with the father. Injunctions were granted to prevent the parties from discussing proceedings with the child, criticising each other in the child's presence, and to regulate communication to a written format via a communications book, except in medical emergencies. Further orders included restrictions on the father's direct communication with the mother, a restraint on the mother permitting the child's sole care by the maternal grandfather, and injunctions against excessive alcohol consumption when the child is in their care. The parties were also directed to attend a family dispute resolution conference. The matter was adjourned for further directions.

Orders

Orders of the court

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) 2005 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.

Further consideration of the matter is adjourned to 18 July 2014 at 9.30 am for directions.

UNTIL FURTHER OR OTHER ORDER:

The child of the relationship X born (omitted) 2005 (hereinafter referred to as “the child”) live with the mother.

The child spend time with the father as follows:

(a) On alternate Thursdays nominally commencing on 22 May 2014 from the conclusion of school (or 3.30 pm if school is not in session) until the commencement of school the following Friday (or 9.00 am if school is not in session);

(b) On alternate weekends from the conclusion of school Friday (or 3.30 pm if school is not in session) until the commencement of school the following Monday or Tuesday if that Monday is a public holiday but in the event school is not in session following the weekend until 9.00 am on that Monday or Tuesday commencing 30 May 2014; and

The child be exchanged between the parties to give effect to order 5 at the child’s school or if school is not in session at a location to be agreed between the parties and failing agreement to be at the bakery previously used by the parties to effect handover of the child.

The parties are restrained and an injunction is hereby granted restraining them and each of them from:

(a) Discussing matters relating to these proceedings with the child or with any third person within the presence of and within the earshot of the child; and

(b) Criticising or denigrating the other of them or members of their respective households or families to the child or in their presence or within the earshot of the child and from allowing anyone else to do so.

The parties communicate all necessary information relating to the welfare and day to day needs of the child including medical and educational needs, in writing, via a communications book to be exchanged between them at each handover of the child.

The father be restrained and an injunction is hereby granted restraining him from communicating with the mother by phone, SMS, email or any other means other than via the communications book except in the case of a medical emergency involving the child.

10.

Without admission, the mother be restrained and an injunction be granted restraining the mother from permitting the child from being in the sole care of the maternal grandfather Mr C.

11.

That without admission by either of them as to the need for same, the parties be restrained and injunctions be granted restraining the parties from consuming alcohol to excess at any time that the child is in his or her care or for a period of 24 hours prior to that time.

12.

Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 24 June 2014 at 2:15pm, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

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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