HEATH & PASCALL (No.3) - [2020] FCCA 3050

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEATH & PASCALL (No.3)

[2020] FCCA 3050

Catchwords:
FAMILY LAW – Children – interim hearing – changeover location for child’s time with father – where final hearing recently concluded and judgment reserved – where Court indicated at the conclusion of the final hearing that the current changeover location was not in the best interests of the child – where parties unable to agree to a new changeover location.

Legislation:

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

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 and

4, 5 and 6 November 2020

Date of Last Submission:

9 November 2020

Delivered at:

Sydney

Delivered on:

11 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms Frizzell

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

Solicitors for the Respondent:

Mr O’Sullivan of O'Sullivans Law Firm

Counsel for the Independent Children's Lawyer:

Mr Waterman

Solicitors for the Independent Children's Lawyer:

Ms Chan of Queensland Legal Aid

THE COURT FINDS THAT:

It is in the best interests of X born in 2018 (‘the child’) to make the following orders.

THE COURT ORDERS THAT:

Paragraph 14 of the Orders made 20 December 2019 be discharged.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Unless otherwise agreed in writing between the parties, all changeovers occur when applicable:
(a)at the child’s day care centre or pre-school on all days that the child attends; and
(b)on all other occasions, and subject to paragraph 3 herein, at G Contact Centre (“the new contact centre”) with the parties being equally responsible for the costs associated with the changeovers at the new contact centre.
For the purposes of paragraph 2(b) herein:
(a)within seven (7) days of the date of these Orders, each party contact the new contact centre to enrol for their respective intake session and each party be solely responsible for the cost of their intake fee;
(b)pending the new contact centre being available, the parties continue to use the C Contact Centre located at Suburb C; and
(c)once the new contact centre becomes available, on days that the new contact centre is not open or not operating for whatever reason on any relevant day, changeovers occur at the Suburb H Police Station carpark located at J Street, Suburb H.

THE COURT NOTES THAT:

(A)These Orders are to be read in conjunction with the Orders made on 5 December 2019 and 20 December 2019.
(B)The substantive parenting matter remains adjourned to a date and time to be fixed for judgment hearing.
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under…

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.3)

Details

AGLC: HEATH & PASCALL (No.3) [2020] FCCA 3050
Case: [2020] FCCA 3050
Decision Date: 11 November 2020

CaseChat Overview and Summary

In the matter of HEATH & PASCALL (No.3), Judge Monahan of the Family Court of Australia considered an application concerning the location for child changeovers between the parents. This interim hearing arose after a final hearing had concluded, with judgment reserved, and the court had indicated its view that the existing changeover location was not in the child's best interests. The parties had been unable to reach an agreement on a new location.

The central legal issue before the court was to determine an appropriate and safe changeover location for the child, given the court's prior indication that the existing arrangement was detrimental to the child's welfare. The court was required to make orders that would facilitate the child's time with the father while prioritising the child's best interests in the interim, pending the delivery of judgment in the substantive parenting matter.

The court reasoned that a new, more suitable changeover location was necessary. It ordered that, unless otherwise agreed, changeovers should occur at the child's day care centre or pre-school when the child was attending, and on other occasions at a new contact centre, with the parties sharing the costs. The court also made provisions for the enrolment process at the new contact centre, stipulated an interim arrangement at a different contact centre until the new one became available, and established an alternative location should the new contact centre be unavailable. These orders were to be read in conjunction with existing orders, and the substantive parenting matter remained adjourned for judgment.

Orders

Orders of the court

Paragraph 14 of the Orders made 20 December 2019 be discharged.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Unless otherwise agreed in writing between the parties, all changeovers occur when applicable:

(a) at the child’s day care centre or pre-school on all days that the child attends; and

(b) on all other occasions, and subject to paragraph 3 herein, at G Contact Centre (“the new contact centre”) with the parties being equally responsible for the costs associated with the changeovers at the new contact centre.

For the purposes of paragraph 2(b) herein:

(a) within seven (7) days of the date of these Orders, each party contact the new contact centre to enrol for their respective intake session and each party be solely responsible for the cost of their intake fee;

(b) pending the new contact centre being available, the parties continue to use the C Contact Centre located at Suburb C; and

(c) once the new contact centre becomes available, on days that the new contact centre is not open or not operating for whatever reason on any relevant day, changeovers occur at the Suburb H Police Station carpark located at J Street, Suburb H.

THE COURT NOTES THAT:

(A) These Orders are to be read in conjunction with the Orders made on 5 December 2019 and 20 December 2019.

(B) The substantive parenting matter remains adjourned to a date and time to be fixed for judgment hearing.

(C) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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