Jeffries and Jeffries - [2013] FCCA 855

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFRIES & JEFFRIES

[2013] FCCA 855

Catchwords:
FAMILY LAW – Parenting – family violence – denigration of parents.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Goodner & Jeperson [2009] FamCA 1052
Collu & Rinaldo [2010] FamCAFC 53
Arthur-Sandys & Sandys [2011] FamCA 866

Applicant:

MR JEFFRIES

Respondent:

MS JEFFRIES

File Number:

BRC 11250 of 2011

Judgment of:

Judge Howard

Hearing dates:

8, 28 and 29 May 2013

Date of Last Submission:

29 May 2013

Delivered at:

Brisbane

Delivered on:

22 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr Curran

Solicitors for the Applicant:

Macdonald Law

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Dean Kath Kohler

Counsel for the Independent Children’s Lawyer:

Mr Andrew

Solicitors for the Independent Children’s Lawyer:

Norman & Kingston

ORDERS

That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 29 July 2013.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 29 July 2013.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 11250 of 2011

MR JEFFRIES

Applicant

And

MS JEFFRIES

Respondent

REASONS FOR JUDGMENT

Background

The Applicant Father, Mr Jeffries, was born on (omitted)1968.
The Respondent Mother, Ms Jeffries, was born on (omitted) 1967.
Both parties live in (omitted). They have three children together namely:-
a)Z born (omitted) 2004;
b)Y born (omitted) 2006; and
c)X born (omitted) 2009.
The parties lived together for approximately 12 years. The parties married in 2005 and separated on a final basis in January 2011.
The parents have been unable to agree on parenting arrangements for their three children.
I note that the mother has five other children from previous relationships. The names of the mother’s other five children are as follows:–
a)A – born (omitted) 1999
b)B – born (omitted) 1996
c)C – born (omitted) 1992
d)D – born (omitted) 1990
e)E – born (omitted) 1986
The father has two children from a previous marriage. The names of the children are F (aged approximately 18) and G (aged approximately 17). I note that the father has no contact with his two older daughters from his previous marriage.
The father seeks a week about shared care arrangement in respect of the children.

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 Jeffries and Jeffries

Details

AGLC: JEFFRIES & JEFFRIES [2013] FCCA 855
Case: [2013] FCCA 855
Decision Date: 22 July 2013

CaseChat Overview and Summary

This matter came before Judge Howard concerning parenting orders for the children of the parties, Jeffries and Jeffries. The dispute centred on determining the best interests of the children in accordance with the Family Law Act 1975 (Cth).

The court was required to consider the paramount consideration of the best interests of the child as stipulated in section 60CA of the Family Law Act 1975 (Cth). To assist in this determination, the court elected to first examine the "additional considerations" outlined in section 60CC(3) of the Act, before returning to the "primary considerations" found in section 60CC(2). This approach was supported by previous case law.

The court's reasoning was informed by a family report prepared by Mr J, dated 22 May 2012, which included interviews with one of the children, Z. Z's statements indicated a lack of enthusiasm for seeing her father, recalling instances where her father did not look after her and expressing fear about seeing him outside of a contact centre due to a past incident involving her father taking her and the police being involved. Z also described her mother as tired and not doing much, while noting her father's anger towards her mother. Despite these concerns, Z did state that she looked forward to seeing her father.

The court made orders requiring the Independent Children’s Lawyer to provide a proposed Final Order to the parties by 29 July 2013. The parties were directed to attempt to reach an agreed position on the wording of the Final Order by the same date. In the event of an inability to agree, the matter was to be listed for mention, with personal attendance required by each party and their legal representatives.

Orders

Orders of the court

That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 29 July 2013.

That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 29 July 2013.

That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 60CA of the Family Law Act 1975 (Cth) provides:-“60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” In the circumstances of this case it is more convenient to first consider the “additional considerations” set out in s.60CC(3) of the Act in Order to assist the Court in determining what is in the best interests of the children. After considering the “additional considerations” I shall return to the “primary considerations” which are included in s.60CC(2). Support for such an approach has been confirmed in several cases including Goodner & Jeperson [2009] FamCA 1052, Collu & Rinaldo [2010] FamCAFC 53 and Arthur-Sandys & Sandys [2011] FamCA 866 (per Judge Purdon-Sully). The children were interviewed initially by Mr J. Mr J prepared a family report dated 22 May 2012. That report is Exhibit six in these proceedings. The interviews with Mr J took place on 27 April 2012. In the interview with Z, I note the following paragraphs:“7.1 Z was willingly interviewed.7.2 She talked a little about attending the (omitted) School and named her teacher and some friends. Her favourite activity is handball. Away from school, she likes playing the Nintendo Wii at home, but unfortunately the remotes are broken and currently they have no games. She also likes jumping on the trampoline, playing with her friend from across the road, J. Y is good to play with because “she is really funny”.7.3 When asked who looks after her really well, she said, “Mostly D or B or E and Mum looks after us after school”.7.4 Regarding seeing her father, she said, “It is good”, but without a lot of enthusiasm.7.5 I asked if her father used to play with her at home and she said, “Not really”. When I asked her if her father looked after her when he lived with them, she said, “No”. She then added, “When I was a baby, he never looked after me”. I asked her how she knew this and she said, “Because Mum told me”. By the same token, she could not remember her father look after her at home.” In particular – I also note Paragraph 7.6 of the report where it is stated:-“7.6 Z said that she does look forward to seeing her father.” The report writer continued from paragraph 7.9:-“7.9 Asked to describe some positive aspects about living with her mother, she said:“She goes to sleep mostly because she’s very tired. She’s awake when I’m home from school. She doesn’t do much. She talks to Uncle D a lot”. 7.10 Asked the same question in relation to her father, she responded:“We went over to his house at night but we’re not allowed anymore because Mum said. Mr P lives there. She think he’s got a pool and he works with horses”.7.11 I asked Z what it might be like to see her Dad away from the contact centre. She said she would be scared, “because one day he took me to his house and he kept me for a night and the police put him in a police car because he stole me”.7.12 I asked her if there were any other things that scare her, but she did not respond.7.13 When I asked Z who gets more angry, Mum or Dad, she responded, “Dad…he gets angry with Mum easily”. 7.14 I asked her if there were good things about Dad and she said, “No not really”.”