Harris and Finch - [2012] FMCAfam 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRIS & FINCH

[2012] FMCAfam 77

FAMILY LAW – Children – parenting orders – family safety issues – appointment of Independent Children’s Lawyer – best interests of the child.

Family Law Act 1975, ss.60CA, 60CC, 68L

Applicant:

MS HARRIS

Respondent:

MR FINCH

File Number:

SYC 7893 of 2011

Judgment of:

Scarlett FM

Hearing date:

13 January 2012

Date of Last Submission:

13 January 2012

Delivered at:

Sydney

Delivered on:

13 January 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Ardino

Solicitors for the Applicant:

Bay Legal

Solicitor for the Respondent:

Ms Shedden

Solicitors for the Respondent:

Watson & Watson

ORDERS

The Respondent Father is to return the child [X], born [in] 2003, to the care of the Mother by 2:00pm on [date omitted].
The Applicant Mother is restrained by injunction not to allow Mr B to be alone in the presence of the child [X] at any time.
Pursuant to the provisions of section 68L of the Family Law Act, the interests of the child [X], born [in] 2003, is to be represented by a lawyer and Legal Aid New South Wales is requested to arrange such representation.
The parties are to forward to Legal Aid New South Wales within seven days copies of all applications, responses, affidavits and other relevant documents to Legal Aid New South Wales for the purposes and use of the Independent Children’s Lawyer when appointed.
The parties are restrained from discussing the proceedings before this Court or the apprehended violence order proceedings before the Local Court of New South Wales with the child.
The Court accepts the undertaking of the Mother not to allow the child [X] to be unsupervised in the presence of Mr L. The Court notes that there are currently apprehended violence proceedings on foot against Mr L.
Costs are reserved.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 7893 of 2011

MS HARRIS

Applicant

And

MR FINCH

Respondent

REASONS FOR JUDGMENT

The Court is dealing with an application by the Mother about a little boy called [X] for a recovery order against the Father. [X] normally lives with the Mother but spends time on a regular and frequent basis with the Father as a result of orders made by consent in this Court on 10^th November 2006. They are detailed orders which probably need some review, in any event. However, that is not a matter for today.
[X] went to stay with his father and his father’s new wife on 23^rd December 2011 and was due to be returned on the 27. However, the Father did not return the child and has explained why in a comprehensive affidavit which he has filed and another affidavit by his wife filed at the same time. The Father raises a specific issue of an alleged assault by the Mother’s friend, Mr…

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 Harris and Finch

Details

AGLC: Harris and Finch [2012] FMCAfam 77
Case: [2012] FMCAfam 77
Decision Date: 13 January 2012

CaseChat Overview and Summary

The matter of Harris and Finch was heard before the Family Court of Australia, concerning a dispute between the Applicant Mother and the Respondent Father regarding the care and custody of their child, [X], born in 2003. The Mother sought orders for the child's return to her care, along with various protective measures and the appointment of an Independent Children's Lawyer. The Father opposed the Mother's application, raising concerns about the child's safety and wellbeing.

The court was required to determine whether the child should be returned to the Mother's care and, if so, what protective measures were necessary to ensure the child's safety. The court also needed to decide on the appointment of an Independent Children's Lawyer to represent the child's interests and whether there were any other factors that should be considered in the best interests of the child.

The court found that returning the child to the Mother's care was in the child's best interests, given the evidence presented. The court was satisfied that the Mother could provide a safe and stable environment for the child. However, the court imposed several protective measures to safeguard the child's wellbeing, including restricting the Mother from allowing the child to be alone with a specified individual, Mr B, due to concerns about his potential risk to the child. The court also ordered that the child should not be unsupervised in the presence of another individual, Mr L, due to ongoing apprehended violence proceedings against him. Additionally, the court mandated the appointment of an Independent Children's Lawyer to represent the child's interests and directed the parties to provide all relevant documents to the lawyer for their use. The court further restrained the parties from discussing the proceedings with the child.

In summary, the court ordered that the child be returned to the Mother's care by a specified time, imposed protective measures to ensure the child's safety, appointed an Independent Children's Lawyer, and restrained the parties from discussing the proceedings with the child. Costs were reserved pending further orders.

Orders

Orders of the court

The Respondent Father is to return the child [X], born [in] 2003, to the care of the Mother by 2:00pm on [date omitted].

The Applicant Mother is restrained by injunction not to allow Mr B to be alone in the presence of the child [X] at any time.

Pursuant to the provisions of section 68L of the Family Law Act, the interests of the child [X], born [in] 2003, is to be represented by a lawyer and Legal Aid New South Wales is requested to arrange such representation.

The parties are to forward to Legal Aid New South Wales within seven days copies of all applications, responses, affidavits and other relevant documents to Legal Aid New South Wales for the purposes and use of the Independent Children’s Lawyer when appointed.

The parties are restrained from discussing the proceedings before this Court or the apprehended violence order proceedings before the Local Court of New South Wales with the child.

The Court accepts the undertaking of the Mother not to allow the child [X] to be unsupervised in the presence of Mr L. The Court notes that there are currently apprehended violence proceedings on foot against Mr L.

Costs are reserved.

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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