HAROLD & OLSON - [2018] FCCA 2817

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAROLD & OLSON

[2018] FCCA 2817

Catchwords:
FAMILY LAW – Interim arrangements in respect of child aged approximately two years of age – high conflict – nature of interim hearing – presumption of equal shared parental responsibility – determining the child’s best interests – section 60CC factors.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 60CC(2A), 60CC(3), 60CC(3)(m), 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA

Cases cited:

Keats & Keats [2016] FamCAFC 156
SS v AH [2010] FamCAFC 13

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant:

MR HAROLD

Respondent:

MS OLSON

File Number:

ADC 3735 of 2018

Judgment of:

Judge Brown

Hearing date:

25 September 2018

Date of Last Submission:

25 September 2018

Delivered at:

Adelaide

Delivered on:

2 October 2018

REPRESENTATION

Counsel for the Applicant:

Ms Chesters

Solicitors for the Applicant:

Dixon Gallasch

Counsel for the Respondent:

Ms Lindsay

Solicitors for the Respondent:

Boril Olds Solicitors

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The child [X] born 2016 live with the father.
To give effect to order 1 hereof the mother deliver the child to the father at a time and place to be agreed between the parties, but failing agreement, to be at the Suburb A Police Station on Tuesday, 2 October 2018 at 3:00pm.
The child spend time with the mother from 3:00pm on Tuesday until 4:00pm Thursday each alternate week and from 3:00pm Friday until 4:00pm Sunday on each intervening week commencing Tuesday 9 October 2018 with the child to be exchanged between the parties at a location to be agreed, but failing any agreement, the Suburb A Police Station.
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 19 November 2018 at 9:30am, 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.
The proceedings be adjourned to 3 December 2018 at 9:30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Harold & Olson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3735 of 2018

MR HAROLD

Applicant

And

MS OLSON

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to interim parenting arrangements for the care of a child who is not yet 2 years of age. She is [X] born 2016. The parties to the proceedings are [X]’s father – Mr Harold; and her mother, Ms Olson.
Each party seek orders that would see [X] living predominately with him or her. Each asserts having been [X]’s primary provider of care in the past. At this early stage, it is readily apparent that there is a significant degree of conflict between them.
At this interim…

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 HAROLD & OLSON

Details

AGLC: HAROLD & OLSON [2018] FCCA 2817
Case: [2018] FCCA 2817
Decision Date: 2 October 2018

CaseChat Overview and Summary

In the matter of HAROLD & OLSON, Judge Brown of the Family Court of Australia considered interim arrangements for a child of approximately two years of age amidst high conflict between the parents. The dispute concerned the primary residence of the child and the nature of the time the child would spend with each parent.

The court was required to determine the child's best interests in the context of interim orders, considering the presumption of equal shared parental responsibility and the factors enumerated in section 60CC of the *Family Law Act*. The court also had to consider the nature and purpose of an interim hearing in high-conflict family law proceedings.

Judge Brown reasoned that at the interim stage, the court's primary focus is on the immediate welfare of the child. While the presumption of equal shared parental responsibility is a starting point, it can be displaced if it is not in the child's best interests. The court applied the principles of section 60CC, weighing the various factors to arrive at orders that would provide stability and safety for the child pending further determination.

The court ordered that the child live with the father, with specific provisions for the mother to deliver the child to the father. The child was to spend time with the mother on an alternating weekly basis, with specific days and times outlined. The parties were also ordered to attend a family dispute resolution conference with a family consultant and the proceedings were adjourned for directions.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER:

The child [X] born 2016 live with the father.

To give effect to order 1 hereof the mother deliver the child to the father at a time and place to be agreed between the parties, but failing agreement, to be at the Suburb A Police Station on Tuesday, 2 October 2018 at 3:00pm.

The child spend time with the mother from 3:00pm on Tuesday until 4:00pm Thursday each alternate week and from 3:00pm Friday until 4:00pm Sunday on each intervening week commencing Tuesday 9 October 2018 with the child to be exchanged between the parties at a location to be agreed, but failing any agreement, the Suburb A Police Station.

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 19 November 2018 at 9:30am, 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.

The proceedings be adjourned to 3 December 2018 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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