LEARMONT & LEARMONT - [2020] FCCA 3131

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEARMONT & LEARMONT

[2020] FCCA 3131

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 9 and 6 – parties consented to final orders in November 2018 – proceedings re-commenced in 2020 – mother alleges father has abused the children – father alleges mother is fabricating allegations – nature of interim hearing – lack of expert evidence – best interests of the children – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 67Z

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Mazorski v Albright (2007) 37 FamLR 518

N & S and the Separate Representative (1996) FLC 92-655

Stevenson v Hughes (1993) FLC 92-363

W & W (abuse allegations: unacceptable risk) [2005] FamCA 892

Applicant:

MR LEARMONT

Respondent:

MS LEARMONT

File Number:

ADC 1605 of 2018

Judgment of:

Judge Brown

Hearing date:

4 November 2020

Date of Last Submission:

4 November 2020

Delivered at:

Adelaide

Delivered on:

17 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

Mellor Olsson

Counsel for the Respondent:

Mr Boehm

Solicitors for the Respondent:

Tolis & Co

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The orders made 13 November 2018 do continue.
Until the commencement of the 2020/2021 Christmas school holidays, during school term time the father collect the children X born in 2010 and Y born in 2014 (‘the children’) from school at the commencement of his time and drop them off to school at the conclusion of his time.
Any handovers that do not take place at the children’s school are to take place at the McDonald’s Restaurant, B Street, Suburb C.
The father return the child X to the mother’s care immediately upon the child becoming emotionally distressed whilst in his care.
Each party is restrained and an injunction issue restraining them from physically disciplining the children whilst they are in their care.
Each party is restrained and an injunction issue restraining them from having the children receive any psychological treatment without the written consent of the other.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2010 and Y born in 2014 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Further consideration of the matter is adjourned to 8 February 2021 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Learmont & Learmont is approved pursuant to s.121(9)(g) of the

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.

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Details

Case: [2020] FCCA 3131
Decision Date: 17 November 2020

CaseChat Overview and Summary

In the matter of *Learmont & Learmont*, Judge Brown of the Family Court of Australia considered interim parenting arrangements for two children, aged nine and six. The proceedings were re-commenced in 2020 following final orders made by consent in November 2018. The mother alleged that the father had abused the children, while the father contended that the mother was fabricating these allegations. The hearing was an interim hearing, and the court noted the absence of expert evidence.

The court was required to determine the best interests of the children in the context of serious allegations of abuse and counter-allegations of fabrication. This involved considering the matters set out in the *Family Law Act 1975* (Cth) relevant to the best interests of children, particularly in circumstances where there is a lack of definitive evidence at the interim stage. The court also had to consider the appropriate interim orders to ensure the children's safety and well-being pending a final determination.

Judge Brown reasoned that, given the serious nature of the allegations and the lack of expert evidence, it was prudent to maintain the existing consent orders from November 2018 as the primary framework for the children's care. However, specific interim orders were made to address immediate concerns, including provisions for school collections and handovers, a directive for the father to return a child to the mother if they became emotionally distressed in his care, and injunctions restraining both parents from physically disciplining the children and from seeking psychological treatment for the children without the other parent's written consent. Crucially, the court ordered the appointment of an Independent Children's Lawyer to represent the children's interests. The matter was adjourned for further directions.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The orders made 13 November 2018 do continue.

2. Until the commencement of the 2020/2021 Christmas school holidays, during school term time the father collect the children X born in 2010 and Y born in 2014 (‘the children’) from school at the commencement of his time and drop them off to school at the conclusion of his time.

3. Any handovers that do not take place at the children’s school are to take place at the McDonald’s Restaurant, B Street, Suburb C.

4. The father return the child X to the mother’s care immediately upon the child becoming emotionally distressed whilst in his care.

5. Each party is restrained and an injunction issue restraining them from physically disciplining the children whilst they are in their care.

6. Each party is restrained and an injunction issue restraining them from having the children receive any psychological treatment without the written consent of the other.

7. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2010 and Y born in 2014 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

8. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

9. Further consideration of the matter is adjourned to 8 February 2021 at 9.30am for directions.

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

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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