Leslie and Alexander - [2017] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

LESLIE & ALEXANDER

[2017] FCCA 337

Catchwords:
FAMILY LAW – Interim application for parenting orders – unilateral interstate relocation of child aged 8 years – child relocated as a consequence of alleged disclosures of abuse – child retained by father following agreed holiday period with mother spent in South Australia – child not returned as scheduled but taken to Tasmania – mother undisputed primary carer for at least previous three years – mother alleged she fled a violent relationship with father in 2013 – father alleges mother is poor and neglectful parent with drug and alcohol issues – father further alleges mother’s partner has exposed child to family violence – nature of interim hearing – assessment of risk – is risk unacceptable – where should allegations be investigated – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 67Z, 67ZBA

Cases cited:
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13]
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
C & S [1998] FamCA 66
Morgan & Miles (2007) FamCA 1230

Applicant:

MS LESLIE

Respondent:

MR ALEXANDER

File Number:

ADC 123 of 2017

Judgment of:

Judge Brown

Hearing date:

15 February 2017

Date of Last Submission:

15 February 2017

Delivered at:

Adelaide

Delivered on:

28 February 2017

REPRESENTATION

Counsel for the Applicant:

Ms Smith

Solicitors for the Applicant:

Legal Services Commission Whyalla

Counsel for the Respondent:

Ms Read

Solicitors for the Respondent:

The Family Law Project

ORDERS

The father return the child of the relationship X born (omitted) 2008 (hereinafter referred to as “the child”) to the mother, in (omitted), in the State of South Australia, at his own expense, no later than 7:00pm on Sunday, 5 March 2017, including the expense of the child being accompanied by an adult.
In order to give effect to order (1) hereof, the father or his agent deliver the child to the mother at a location, in (omitted), to be agreed between the parties and failing agreement to be at the foyer area of the (omitted) Police Station.
If the father fails to comply with order (1) hereof, a Recovery order do issue forthwith in the following form:
“A Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
a)find and recover the said child X born (omitted) 2008;
b)to deliver the said child to the mother at such place as the officers giving effect to the Recovery Order may agree; and
c)to stop and search any vehicle, vessel or aircraft and to enter and search any…

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 Leslie and Alexander

Details

AGLC: Leslie and Alexander [2017] FCCA 337
Case: [2017] FCCA 337
Decision Date: 28 February 2017

CaseChat Overview and Summary

In the matter of Leslie and Alexander, Judge Brown of the Federal Circuit Court of Australia was required to determine orders concerning the welfare and best interests of a child. The dispute involved the father's obligation to return the child to the mother and arrangements for the child's living arrangements, time with the father, and communication.

The court was tasked with determining the specific terms of the child's return to the mother, including the timing and location. Further issues before the court included establishing the child's primary residence, the father's future time with the child, and the nature of communication between the father and the child. The court also needed to consider orders restraining the parties from discussing the proceedings or denigrating each other in the child's presence, and the necessity of a family report to assist in resolving the matters.

Judge Brown ordered the father to return the child to the mother in South Australia by a specified date and time, at his own expense, and to facilitate this return by delivering the child to the mother at an agreed location or, failing agreement, at a police station. The court further ordered that the child live with the mother and outlined specific arrangements for the father to spend time with the child during school holidays, subject to conditions regarding location and expense. Telephone communication between the father and child was also stipulated. Injunctions were granted restraining the parties from abusing or discussing the proceedings in the child's presence. Crucially, the court ordered the parties and the child to attend an assessment for a family report, with directions for its preparation and release, to inform further consideration of the matter. The proceedings were adjourned for further consideration.

Orders

Orders of the court

The father return the child of the relationship X born (omitted) 2008 (hereinafter referred to as “the child”) to the mother, in (omitted), in the State of South Australia, at his own expense, no later than 7:00pm on Sunday, 5 March 2017, including the expense of the child being accompanied by an adult.

In order to give effect to order (1) hereof, the father or his agent deliver the child to the mother at a location, in (omitted), to be agreed between the parties and failing agreement to be at the foyer area of the (omitted) Police Station.

If the father fails to comply with order (1) hereof, a Recovery order do issue forthwith in the following form:

“A Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

a) find and recover the said child X born (omitted) 2008;

b) to deliver the said child to the mother at such place as the officers giving effect to the Recovery Order may agree; and

c) to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child/children may be found.”

UNTIL FURTHER OR OTHER ORDER

The said child live with the mother.

The father spend time with the child, during the forthcoming end of term one/Easter South Australian school holidays, provided the time takes place in (omitted), South Australia and at the father’s expense from 3:30pm on Saturday, 15 April 2017 until 3.30pm on Friday, 21 April 2017.

In order to give effect to order (5) hereof the child be exchanged between the parties at a location to be agreed between them and failing agreement to be the (omitted) Police Station.

The father have telephone communication with the child at times to be agreed between the parties and failing agreement to be at 6.00 pm Australian Central Time each Tuesday and Friday with the father to initiate the call to a telephone number provided by the mother.

The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.

The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings in the presence of the child or from permitting any other person to do so.

10.

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 5 May 2017.

11.

The family assessment to deal with the following matters:

(a) to include interviews with the parties, the child and relevant family members;

(b) observed interaction between the child and the parties;

(c) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(d) the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

(e) any other matters that the family assessor considers important to the welfare or best interests of the said child.

12.

The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

13.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference

NOTING:

A. At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

15.

That further consideration of this matter is adjourned to 19 May 2017 at 9:30am.

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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