JEFFS & MARSHALL (No.2) - [2018] FCCA 3713

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFS & MARSHALL (No.2)

[2018] FCCA 3713

Catchwords:
FAMILY LAW – Part-heard trial – oral application for interim parenting orders pending resumption of trial.

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant:

MS JEFFS

Respondent:

MR MARSHALL

File Number:

MLC 7616 of 2016

Judgment of:

Judge Harland

Hearing date:

7 December 2018

Date of Last Submission:

7 December 2018

Delivered at:

Melbourne

Delivered on:

13 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Teicher

Solicitors for the Applicant:

Cathleen Corridon and Associates

Counsel for the Respondent:

Ms Healey

Solicitors for the Respondent:	CBD Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Devine
Solicitors for the Independent Children's Lawyer:	Altavilla Family Law

ORDERS

The father spend time with the children [X] born 2009 and [Y] born 2013 (“the children”) from 10:00am on 11 January 2019 to 4:00pm on 14 January 2019.
That the time pursuant to order 1 be supervised by MS A upon her undertaking to properly supervise all time between the father and the children and such undertaking to be filed with the Court seven (7) days prior to the time taking place.
Changeover at the commencement of time to take place at Dr B’s office situate at [Suburb A], with the mother or her nominee to deliver the children to Dr B’s office by 10:00am on 11 January 2019.
The father and Ms A shall return the children to the maternal grandmother’s home in [Town 1], or at the McDonalds in [Town 1], such location to be nominated by the mother in writing by no later than 18 December 2018.

Notation:

The father will be responsible for Dr B’s fees.

IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7616 of 2016

MS JEFFS

Applicant

And

MR MARSHALL

Respondent

REASONS FOR JUDGMENT

This is a complex parenting matter. The trial has taken seven hearing days thus far and is listed for another day of hearing on 17 January 2019. The length of the trial is an indication of the complexity considering that it is has proceeded on an undefended basis with respect to the mother. Due to the nature of the issues I have to consider, I have heard extensive oral evidence from the family consultant, the father, his sister, the father’s psychologist, Dr C, two police officers from SOCIT, a social worker from Department of Health and Human Services (“DHHS”) and a social worker from Family and Community Services (“FACS”).
Given the time constraints, I am not able to refer to the evidence given at trial in any detail. The Full Court in Goode & Goode [2006] FamCA 1346 set out the legislative pathway the Court should consider when making interim parenting decisions.
The hearing will resume on 17 January 2019 when the family consultant will be recalled and the parties will make final…

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 JEFFS & MARSHALL (No.2)

Details

AGLC: Jeffs and Marshall (No.2) [2018] FCCA 3713
Case: [2018] FCCA 3713
Decision Date: 13 December 2018

CaseChat Overview and Summary

In *Jeffs & Marshall (No.2)*, Judge Harland of the Family Court of Australia considered an oral application for interim parenting orders made by the father during a part-heard trial. The dispute concerned the arrangements for the children, [X] and [Y], pending the resumption of the trial.

The central legal issue before the Court was whether to grant interim parenting orders that would allow the father to spend time with the children during the period between the conclusion of the first part of the trial and its resumption. This required the Court to assess the best interests of the children in the context of an ongoing family law proceeding.

Judge Harland reasoned that it was in the children's best interests to have supervised contact with their father. The Court ordered that the father spend time with the children from 10:00 am on 11 January 2019 to 4:00 pm on 14 January 2019. This time was to be supervised by Ms A, who was required to file an undertaking with the Court within seven days prior to the commencement of the contact. The orders also specified the locations and times for changeovers, including the father's responsibility for the supervisor's fees.

Orders

Orders of the court

The father spend time with the children [X] born 2009 and [Y] born 2013 (“the children”) from 10:00am on 11 January 2019 to 4:00pm on 14 January 2019.

That the time pursuant to order 1 be supervised by MS A upon her undertaking to properly supervise all time between the father and the children and such undertaking to be filed with the Court seven (7) days prior to the time taking place.

Changeover at the commencement of time to take place at Dr B’s office situate at [Suburb A], with the mother or her nominee to deliver the children to Dr B’s office by 10:00am on 11 January 2019.

The father and Ms A shall return the children to the maternal grandmother’s home in [Town 1], or at the McDonalds in [Town 1], such location to be nominated by the mother in writing by no later than 18 December 2018.

Notation:

The father will be responsible for Dr B’s fees.

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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