HAMBLETON & ADEMA (No.3) - [2020] FCCA 3007

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMBLETON & ADEMA (No.3)

[2020] FCCA 3007

Catchwords:
FAMILY LAW – Interim application for parenting arrangements for child aged 3 – assessment of the child’s best interests in the context of allegations that the mother poses a risk – mother currently facing criminal charges – mother previously engaged in illicit substance use – issues relating to mother’s psychiatric health – nature of interim hearing – whether supervised time should occur – best interests of the child paramount consideration – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Adema & Hambleton [2018] FCCA 3152

Adema & Hambleton (No 2) [2020] FCCA 2279

B & B (1993) FLC 92-357

Dieter & Dieter [2011] FamCAFC 82

W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant:

MS HAMBLETON

Respondent:

MR ADEMA

File Number:

ADC 4220 of 2018

Judgment of:

Judge Brown

Hearing date:

3 November 2020

Date of Last Submission:

3 November 2020

Delivered at:

Adelaide

Delivered on:

6 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Wabnitz

Solicitors for the Applicant:

Daniel John Lawyers

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Scales & Partners

Counsel for the Independent Children's Lawyer:

Mr Charman

Solicitors for the Independent Children's Lawyer:

Adelta Legal

ORDERS

The parties each enrol at the Suburb D Children’s Contact Centre to assess their suitability to take part in the supervised access program by no later than close of business on 13 November 2020.
The mother spend time with the child X born in 2017 on such occasion as the Director of the Suburb D Children’s Contact Centre or his/her nominee can accommodate the parties subject to the following:
(a)There be no more than one session per fortnight which is not to exceed two (2) hours in duration;
(b)Each period is to be subject to the supervision of the Director of the Centre or his/her nominee;
(c)the visits are to be at the expense of the mother; and
(d)after six visits the mother is to obtain a report from the Director of the Centre regarding the children’s reactions to the visits.
Further consideration of the matter is adjourned to 31 May 2021 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Hambleton & Adema (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4220 of 2018

MS HAMBLETON

Applicant

And

MR ADEMA

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to interim parenting arrangements for a young child. The child is X born in 2017.
The central issue in the case, at this stage, is what time X should spend with his mother, Ms Hambleton and how that time should be supervised.
Ms Hambleton has a complicated psychiatric history, including a recent period of involuntary detention, pursuant to the provisions of the Mental Health Act in December 2019.
She also has a history of illicit…

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: [2020] FCCA 3007
Decision Date: 6 November 2020

CaseChat Overview and Summary

In *Hambleton & Adema (No.3)*, Judge Brown of the Family Court of Australia considered an interim application for parenting arrangements concerning a three-year-old child. The dispute arose amidst allegations that the mother posed a risk to the child, stemming from her current engagement with criminal charges, a history of illicit substance use, and concerns regarding her psychiatric health.

The central legal issue before the court was the assessment of the child's best interests in the context of these allegations, specifically whether supervised time between the mother and child should be ordered. The court was required to determine what matters were relevant to the child's best interests at this interim stage and the appropriate form of supervised contact.

Judge Brown applied the paramount consideration of the child's best interests, weighing the mother's circumstances against the need for the child's safety and well-being. The court reasoned that supervised contact was necessary given the identified risks. Consequently, the orders stipulated that both parties enrol at a specific Children's Contact Centre for assessment. The mother was permitted supervised time with the child, limited to one two-hour session per fortnight, at her expense, and subject to the Centre Director's accommodation and supervision. Following six visits, a report on the child's reactions was to be obtained. Further consideration of the matter was adjourned for directions.

Orders

Orders of the court

The parties each enrol at the Suburb D Children’s Contact Centre to assess their suitability to take part in the supervised access program by no later than close of business on 13 November 2020.

The mother spend time with the child X born in 2017 on such occasion as the Director of the Suburb D Children’s Contact Centre or his/her nominee can accommodate the parties subject to the following:

(a) There be no more than one session per fortnight which is not to exceed two (2) hours in duration;

(b) Each period is to be subject to the supervision of the Director of the Centre or his/her nominee;

(d) after six visits the mother is to obtain a report from the Director of the Centre regarding the children’s reactions to the visits.

Further consideration of the matter is adjourned to 31 May 2021 at 9.30am for directions.

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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