Leonard & Gregory (No 2) - [2021] FCCA 1712

FEDERAL CIRCUIT COURT OF AUSTRALIA
Leonard & Gregory (No 2) [2021] FCCA 1712

File number(s): DUC 480 of 2020

Judgment of: JUDGE OBRADOVIC

Date of judgment: 28 July 2021

Catchwords: FAMILY LAW – parenting – second interim application – where the paternal grandparents seek orders reducing the mother’s time with child – Rice & Asplund threshold argument – change in circumstances found – adverse credibility findings against the mother – best interests of the child

Legislation: Family Law Act 1975 (Cth), s 69ZL

Cases cited:
Goode v Goode [2006] FamCA 1346

Judd & Pryor (No.2) [2020] FamCA 934

Keats & Keats [2016] FamCAFC 156

King & Finneran [2001] FamCA 344

Leonard & Gregory [2021] FCCA 646

Marsden & Winch [2009] FamCAFC 152

Rice & Asplund [1978] FamCA 84

Number of paragraphs: 42

Date of hearing: 26 July 2021

Place: Dubbo

Solicitor for the Applicants: McIntosh McPhillamy & Co Legal Services

Counsel for the Applicants: Ms Seric

Solicitor for the First Respondent: Peacockes Solicitors

Appearing for the First Respondent: Ms Keen

Solicitor for the Second Respondent: Silkman Hockey Lawyers

Appearing for the Second Respondent: Ms Baker

Solicitor for the Independent Children's Lawyer: Osborne Legal

Appearing for the Independent Children's Lawyer: Ms McKay
ORDERS

DUC 480 of 2020

BETWEEN:
MS SUTTON

First Applicant

MR B LEONARD

Second Applicant

AND:
MR LEONARD

First Respondent

MS GREGORY

Second Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

28 JULY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.Orders 9 and 10 dated 18 March 2021 are discharged.
2.That the child X, born in 2010, shall spend time with the mother:
(a)from 10am until 5.00pm each Saturday;
(b)from 3pm on Christmas Eve until 3pm on Christmas Day 2021; and
(c)at all other times as agreed to between the paternal grandmother and the mother in writing.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Leonard & Gregory (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC

These are short form reasons made pursuant to s.69ZL Family Law Act 1975 (Cth).
On 18 March 2021, following a contested interim hearing (“first interim hearing”), the Court delivered its reasons for judgement and made interim parenting orders in respect of the subject child of these proceedings, X (see Leonard & Gregory [2021] FCCA 646).
At the conclusion of the first interim hearing, orders were made providing, inter alia, that X live with the paternal grandparents and that she spend time with the mother for 5 nights per fortnight, being Thursday – Tuesday each alternate week and from 3-6 pm Thursday in the alternate week.
The risks identified at the first interim hearing, included the mother’s capacity to act protectively towards X. The Court in its reasons for judgment, identified concerns about 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.

Continue reading Leonard & Gregory (No 2)

Details

AGLC: Leonard and Gregory (No 2) [2021] FCCA 1712
Case: [2021] FCCA 1712
Decision Date: 28 July 2021

CaseChat Overview and Summary

In the matter of *Sutton v Leonard*, heard by Obradovic J, the applicants, Ms Sutton and Mr B Leonard, sought orders concerning the welfare of a child, X, born in 2010. The respondents were Mr Leonard and Ms Gregory. The proceedings concerned parenting arrangements for the child.

The court was required to determine the specific arrangements for the child X to spend time with the mother, Ms Sutton. This involved considering the discharge of previous orders and establishing new, defined periods of time the child would spend with the mother.

Obradovic J ordered that previous orders 9 and 10, made on 18 March 2021, be discharged. The court then made new orders regarding the child X's time with the mother. Specifically, the child is to spend time with the mother each Saturday from 10 am until 5 pm. Further, the child is to spend time with the mother from 3 pm on Christmas Eve until 3 pm on Christmas Day 2021. Finally, all other times the child spends with the mother are to be as agreed in writing between the paternal grandmother and the mother. The court also noted the prohibition under section 121 of the *Family Law Act 1975* (Cth) against publishing identifying details of family law proceedings.

Orders

Orders of the court

DUC 480 of 2020

BETWEEN:

MS SUTTON

First Applicant

MR B LEONARD

Second Applicant

AND:

MR LEONARD

First Respondent

MS GREGORY

Second Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

28 JULY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. Orders 9 and 10 dated 18 March 2021 are discharged.

2. That the child X, born in 2010, shall spend time with the mother:

(a) from 10am until 5.00pm each Saturday;

(b) from 3pm on Christmas Eve until 3pm on Christmas Day 2021; and

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Full text does not contain this section.

File number(s):	DUC 480 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	28 July 2021
Catchwords:	FAMILY LAW – parenting – second interim application – where the paternal grandparents seek orders reducing the mother’s time with child – Rice & Asplund threshold argument – change in circumstances found – adverse credibility findings against the mother – best interests of the child
Legislation:	Family Law Act 1975 (Cth), s 69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346 Judd & Pryor (No.2) [2020] FamCA 934 Keats & Keats [2016] FamCAFC 156 King & Finneran [2001] FamCA 344 Leonard & Gregory [2021] FCCA 646 Marsden & Winch [2009] FamCAFC 152 Rice & Asplund [1978] FamCA 84
Number of paragraphs:	42
Date of hearing:	26 July 2021
Place:	Dubbo
Solicitor for the Applicants:	McIntosh McPhillamy & Co Legal Services
Counsel for the Applicants:	Ms Seric
Solicitor for the First Respondent:	Peacockes Solicitors
Appearing for the First Respondent:	Ms Keen
Solicitor for the Second Respondent:	Silkman Hockey Lawyers
Appearing for the Second Respondent:	Ms Baker
Solicitor for the Independent Children's Lawyer:	Osborne Legal
Appearing for the Independent Children's Lawyer:	Ms McKay

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	28 JULY 2021