Lambert and Adamson - [2011] 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 and Adamson

Details

AGLC: Lambert and Adamson [2011] FMCAfam 1116
Case: [2011] FMCAfam 1116
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms Lambert (the mother) filed an application against Mr Adamson (the father) seeking various parenting orders for their two children, X and Y. The mother sought sole parental responsibility, for the children to live with her, and for the children to spend supervised time with the father at an authorised contact centre, as well as spending special occasions with each parent. The father opposed the mother's application and sought sole parental responsibility, for the children to live with him, and for the children to spend time with the mother at a supervised contact centre or an alternative suitable option, along with imposing various restraints on the mother and requiring the parties to attend a post-separation parenting course. The court considered the statutory provisions of the Family Law Act 1975 and the factors to be considered in determining the best interests of the children, including the benefit of a meaningful relationship with both parents and the need to protect the children from harm.

After considering the evidence and proposals from both parties, the court decided not to determine the issue of parental responsibility at this interim stage, as it was not appropriate to do so. Instead, the court decided that the children should remain living with the father in the interim, while the mother's time with the children should be supervised by an agreed supervisor, or failing agreement, a professionally accredited or recognised supervisor engaged by the father at his cost. The court also ordered that both parties complete the necessary application forms with the Sydney Children’s Contact Service and attend all necessary intake sessions, encouraging the parties to discuss possible alternatives to paid supervised time in the meantime. The court further ordered the appointment of an Independent Children’s Lawyer and set a timetable for the filing of further affidavit material by both parties, with the matter to return on the first available date in Sydney for mention only on 27 April 2011, with the input of the Independent Children’s Lawyer. The court also noted that the mother's request for an expert report may be considered at the mention hearing or on a subsequent date, as appropriate.

Orders