LAMBERT & ADAMSON - [2009] FMCAfam 1116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAMBERT & ADAMSON

[2011] FMCAfam 1116

FAMILY LAW – Parenting – interim hearing – supervised time sought by both parent of other parent – alcohol and family violence issues – recovery order sought by mother – mother had no contact with children for three months – appointment of an independent children’s lawyer.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA

Goode & Goode (2006) FLC 93-286

Applicant:

MS LAMBERT

Respondent:

MR ADAMSON

File Number:

PAC 322 of 2009

Judgment of:

Monahan FM

Hearing date:

30 March 2011

Date of Last Submission:

30 March 2011

Delivered at:

Sydney

Delivered on:

30 March 2011

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Mulley Roth Solicitors

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:

Legal Aid NSW

ORDERS

All extant applications be adjourned to this Court on 27 April 2011 at 9:30am for mention (“the mention hearing”).
Pursuant to s.11F of the Family Law Act 1975 (“the Act”), the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 30 March 2011 at 10:00am and, pursuant to s.11C of the Act, such conference be reportable.
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), X, born (omitted) 2007, and Y, born (omitted) 2009 (“the children”), be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The Applicant make, file and serve all further affidavit material upon which she wishes to rely by not later than 4:00pm on 7 April 2011.
The Respondent make, file and serve all further affidavit material upon which he wishes to rely by not later than 4:00pm on 14 April 2011.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

The children live with the Respondent.
The children spend time with the Applicant under the supervision of a supervisor agreed upon by the parties and, failing such agreement, by a professional supervisor arranged and paid for by the Respondent, for a maximum of three (3) periods of up to two (2) hours each or a maximum cost of $300.00 per supervised session.
Both parties do all things necessary to enrol with SYDNEY CHILDREN”S CONTACT SERVICE, Sydney (“the Centre”), so that the Applicant may spend time with the children at the Centre.
Upon the Centre facilitating…

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 LAMBERT & ADAMSON

Details

AGLC: LAMBERT & ADAMSON [2009] FMCAfam 1116
Case: [2009] FMCAfam 1116
Decision Date: 30 March 2011

CaseChat Overview and Summary

The matter before the court involves Lambert and Adamson, who are parents of two children. The dispute centres on the arrangements for the children's care, with particular attention to supervised visitation and broader parenting concerns. The Family Court of Australia is the judicial body adjudicating on this case. The mother, Lambert, sought supervised visitation with the children due to concerns over alcohol use and family violence by the father, Adamson. Additionally, Lambert requested a recovery order, given her lack of contact with the children for three months. In response, Adamson also sought supervised visitation, and the mother proposed the appointment of an independent children's lawyer.

The court was required to determine several legal issues, including the appropriateness of supervised visitation for both parents and the necessity of appointing an independent children's lawyer to represent the children's interests. The court had to weigh the evidence and arguments presented by both parties regarding their fitness to parent under supervised conditions and the necessity for independent legal representation for the children.

The court's reasoning indicated a careful consideration of the welfare and best interests of the children. It decided that both parents should have supervised visitation with the children, given the serious concerns about alcohol use and family violence. The court ordered that the children spend time with their mother under supervision, with a maximum of three sessions of up to two hours each, or a cost cap of $300 per session. The court also mandated that both parents enroll with a children's contact service to facilitate supervised visits. Additionally, the court ordered the appointment of an independent children's lawyer to represent the children, who would be responsible for filing a notice of address for service and fulfilling specific tasks as outlined in the court's guidelines. The matter was adjourned for a mention hearing to further assess the situation with the input of the independent children's lawyer.

The final orders of the court included the adjournment of all extant applications to a mention hearing, a requirement for a Child Dispute Conference with a Family Consultant, the appointment of an independent children's lawyer for the children, and deadlines for the parties to file and serve further affidavit material. The court also ordered the children to live with the father while allowing supervised visitation with the mother, as well as mandating both parents to enroll with a children's contact service for facilitated visits.

Orders

Orders of the court

All extant applications be adjourned to this Court on 27 April 2011 at 9:30am for mention (“the mention hearing”).

Pursuant to s.11F of the Family Law Act 1975 (“the Act”), the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 30 March 2011 at 10:00am and, pursuant to s.11C of the Act, such conference be reportable.

Pursuant to s.68L(2) of the Family Law Act 1975 (“the Act”), X, born (omitted) 2007, and Y, born (omitted) 2009 (“the children”), be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:

(a) Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;

(b) Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and

(c) The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.

The Applicant make, file and serve all further affidavit material upon which she wishes to rely by not later than 4:00pm on 7 April 2011.

The Respondent make, file and serve all further affidavit material upon which he wishes to rely by not later than 4:00pm on 14 April 2011.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

The children live with the Respondent.

The children spend time with the Applicant under the supervision of a supervisor agreed upon by the parties and, failing such agreement, by a professional supervisor arranged and paid for by the Respondent, for a maximum of three (3) periods of up to two (2) hours each or a maximum cost of $300.00 per supervised session.

Both parties do all things necessary to enrol with SYDNEY CHILDREN”S CONTACT SERVICE, Sydney (“the Centre”), so that the Applicant may spend time with the children at the Centre.

Upon the Centre facilitating the Applicant spending time with children at the Centre, and the Applicant spend time with the children at such times and dates as advised by the Centre.

AND THE COURT NOTES THAT:

(A) The purpose of the mention hearing is to obtain the preliminary views of the Independent Children’s Lawyer, including on the issue of any further order for the children to spend supervised time with the Applicant, and to consider whether the matter would benefit from a further interim hearing.

(B) The Applicant is seeking the appointment of an expert under Part 15 of the

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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