HEATH & PASCALL (No.2) - [2019] FCCA 3898

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEATH & PASCALL (No.2)

[2019] FCCA 3898

Catchwords:
FAMILY LAW – Children – Interim hearing – child’s time with father – final hearing part-heard – where it is agreed that an updated family report is required – issue as to whom should prepare updated family report – where recommendations of family consultant diverge from expert evidence – whether matter needs an updated expert report – updated family report ordered – updated expert report ordered – whether interim time with father should increase.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 62G, 64B, 69ZL

Family Law Regulations 1984, r.7
Federal Circuit Court Rules 2001, rr.15.09, 15.11

Applicant:

MR HEATH

Respondent:

MS PASCALL

File Number:

BRC 8029 of 2018

Judgment of:

Judge Monahan

Hearing dates:

2, 3, 4 and 5 December 2019 (part-heard)

Date of Last Submission:

5 December 2019

Delivered at:

Sydney

Delivered on:

20 December 2019

REPRESENTATION

Counsel for the Applicant:

Ms Frizzell

Solicitors for the Applicant:	Ms Lowe of Keyworth Harris & Lowe Family Lawyers
Counsel for the Respondent:	Mr George

Solicitors for the Respondent:

Mr Holloway of Holloway Jenkins

Counsel for the Independent Children's Lawyer:

Mr Waterman

Solicitors for the Independent Children's Lawyer:

Ms Chan of Queensland Legal Aid

THE COURT ORDERS:

All extant applications be adjourned part-heard to the Brisbane Federal Circuit Court on 3, 4 and 5 June 2020 at 10.00am for final hearing with an estimated hearing time of no longer than three (3) days (“the Final Hearing”).
All extant applications be adjourned to the Sydney Federal Circuit Court on 8 May 2020 at 10.00am for directions (“the directions hearing”) for the purposes of a compliance hearing in respect of the part-heard final hearing.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and X born in 2018 (“the child”) attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia, Brisbane Registry (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court as soon as possible and by no later than 1 May 2020 AND FURTHER:
(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
(b)The parties comply with all reasonable directions and requests of the Family Consultant;
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court and the exhibits that have been tendered;
(d)In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations 1984, then:
(i)within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or…

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 HEATH & PASCALL (No.2)

Details

AGLC: HEATH & PASCALL (No.2) [2019] FCCA 3898
Case: [2019] FCCA 3898
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of *Heath & Pascall (No.2)* concerned an application by the father for orders for the children to spend time with him, and for the mother to facilitate that time. The dispute arose in the context of ongoing proceedings concerning the children's welfare and living arrangements. The matter came before Monahan J in the Federal Circuit Court of Australia.

The primary legal issues before the Court were whether it was in the best interests of the children for them to spend time with their father, and if so, what orders should be made to facilitate that time, including the extent to which the mother should be required to facilitate such contact. The Court was also required to consider the application of relevant provisions of the *Family Law Act 1975* (Cth) and associated Rules and Regulations, particularly concerning the children's best interests and parental responsibilities.

Monahan J's reasoning focused on the paramountcy of the children's best interests, as mandated by the *Family Law Act*. The Court considered the evidence presented by both parties regarding the children's well-being and their relationship with each parent. His Honour applied the principles of the Act, including the considerations outlined in sections 60CA and 60CC, to determine what arrangements would best promote the children's safety, welfare, and development. The Court also considered the mother's obligation to facilitate the children spending time with the father, as provided for under the Act.

The Court made orders for the children to spend time with the father, specifying the frequency and duration of that time. The mother was ordered to facilitate the children's compliance with these orders, with specific provisions addressing communication and handover arrangements.

Orders