Lissa & Simu & Anor - [2020] FCCA 2700

FEDERAL CIRCUIT COURT OF AUSTRALIA

LISSA & SIMU & ANOR

[2020] FCCA 2700

Catchwords:
FAMILY LAW – Parenting – interim hearing – where child lives with maternal grandmother – spend time with arrangements with mother – where child has no relationship with biological father – where child’s biological father may be incarcerated – where parties are on a waitlist for child’s time with mother to be supervised by a contact centre – where child’s time with mother is supervised by a paid supervision service – whether child’s time with mother should continue with professional supervision or transition to/or be in tandem with supervision by maternal grandfather or paternal great-grandmother – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 69ZL.

Applicant:

MS LISSA

First Respondent:

MR SIMU

Second Respondent:

MS MORRIS

File Number:

SYC 8434 of 2019

Judgment of:

Judge Monahan

Hearing date:

7 September 2020

Date of Last Submission:

7 September 2020

Delivered at:

Sydney

Delivered on:

1 October 2020

REPRESENTATION

Counsel for the Applicant:

Ms Giacomo

Solicitors for the Applicant:

Ms Purcell of Purcell Lawyers

Solicitors for the Respondent:

Ms Dunkley of Mahony Family Lawyers

Solicitors for the Independent Children’s Lawyer:

Mr Nasti of S P Nasti & Co Solicitors

ORDERS

THE COURT ORDERS THAT:

Paragraph 3 of the Orders made 23 July 2020 be discharged.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

X born in 2015 (“X”) spend time with the mother as agreed between the maternal grandmother in writing, and failing agreement, such time occur pursuant to these Orders.
The mother and the maternal grandmother do all acts and things to maintain their placement with B Contact Centre at Suburb D (“the Contact Centre”) and the child spend supervised time with the mother at such times as may be offered by the Contact Centre.
In addition to any time to be spent pursuant to paragraph 3 herein, the child spend time with mother:
(a) supervised at such times as agreed in writing by:
(i)a suitable person as agreed between the parties;
(ii) or a professional supervisor as agreed between the parties, with the mother to meet the professional supervisor’s costs;
(b) or supervised by either:
(i)the maternal grandfather, Mr Lissa, in accordance with paragraph 5 herein;
(ii)maternal great grandmother, Ms C, in accordance with paragraph 6 herein.
In the event the child’s time with the mother is supervised by Mr Lissa, the following conditions apply:
(a)    such time be for not longer than three (3) hours, not more than once per week;
(b)    the changeover at the commencement of time, but not at the conclusion of the relevant time, be supervised by a professional supervisor for the first four (4) occasions, with the mother to meet the professional supervisor’s costs;
(c)    such time occur at a public place, as agreed between the mother and the maternal grandmother and failing agreement, nominated by the maternal grandmother on the first four (4) occasions and thereafter by the mother;
(d)…

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 Lissa & Simu & Anor

Details

AGLC: Lissa & Simu & Anor [2020] FCCA 2700
Case: [2020] FCCA 2700
Decision Date: 1 October 2020

CaseChat Overview and Summary

This matter concerned an interim hearing before Judge Monahan in the Federal Circuit and Family Court of Australia. The dispute involved parenting arrangements for a child, X, born in 2015, who was residing with the maternal grandmother. The child had no relationship with the biological father, who may have been incarcerated. The primary issue was whether the child's time with the mother, which was currently supervised by a paid service and for which the parties were on a waitlist for a contact centre, should continue with professional supervision or transition to, or run in tandem with, supervision by the maternal grandfather or paternal great-grandmother.

The court was required to determine the best interests of the child in relation to these proposed changes to supervised time with the mother. Specifically, the court had to consider the suitability of the maternal grandfather and the paternal great-grandmother as supervisors, the conditions under which such supervision should occur, and how these arrangements would interact with existing or pending professional supervision. The court also needed to address the practicalities of implementing any new supervision arrangements, including the costs involved and the need for undertakings from the proposed supervisors.

In its reasoning, the court applied the paramountcy principle of the child's best interests under the *Family Law Act 1975* (Cth). The court made detailed orders to facilitate supervised time between the child and the mother, allowing for a phased transition and a combination of professional and family-based supervision. The orders stipulated specific time limits, locations, and supervision requirements for both the maternal grandfather and the paternal great-grandmother, including the necessity for professional supervision at changeovers for initial periods and the requirement for undertakings from the supervisors. The court also granted liberty to the Independent Children's Lawyer to approach Chambers if concerns arose regarding the arrangements.

The court ordered the discharge of a previous order and made new interim orders pending further directions. These orders detailed the supervised time arrangements with the mother, including provisions for professional supervision, supervision by the maternal grandfather (Mr Lissa) with specific conditions, and supervision by the maternal great-grandmother (Ms C) with distinct conditions. The matter was adjourned for a directions hearing to review progress, consider expert reports, and address any ongoing disputes.

Orders

Orders of the court

THE COURT ORDERS THAT:

Paragraph 3 of the Orders made 23 July 2020 be discharged.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

X born in 2015 (“X”) spend time with the mother as agreed between the maternal grandmother in writing, and failing agreement, such time occur pursuant to these Orders.

The mother and the maternal grandmother do all acts and things to maintain their placement with B Contact Centre at Suburb D (“the Contact Centre”) and the child spend supervised time with the mother at such times as may be offered by the Contact Centre.

In addition to any time to be spent pursuant to paragraph 3 herein, the child spend time with mother:

(a) supervised at such times as agreed in writing by:

(i) a suitable person as agreed between the parties;

(ii) or a professional supervisor as agreed between the parties, with the mother to meet the professional supervisor’s costs;

(b) or supervised by either:

(i) the maternal grandfather, Mr Lissa, in accordance with paragraph 5 herein;

(ii) maternal great grandmother, Ms C, in accordance with paragraph 6 herein.

In the event the child’s time with the mother is supervised by Mr Lissa, the following conditions apply:

(a) such time be for not longer than three (3) hours, not more than once per week;

(b) the changeover at the commencement of time, but not at the conclusion of the relevant time, be supervised by a professional supervisor for the first four (4) occasions, with the mother to meet the professional supervisor’s costs;

(c) such time occur at a public place, as agreed between the mother and the maternal grandmother and failing agreement, nominated by the maternal grandmother on the first four (4) occasions and thereafter by the mother;

(d) the mother and Mr Lissa be restrained by injunction from causing the child to leave the public location; and

(e) the maternal grandmother be at liberty to have a support person present with her at changeover and all parties are directed to remain at a respectful distance from each other.

In the event that time is supervised by Ms C, the following conditions applies:

(a) such time occur at the residence of Ms C;

(b) the changeover at the commencement of time be supervised by a professional supervisor for the first occasion only, at the commencement of the relevant time, but not at the conclusion of the relevant time, with the mother to meet the professional supervisor’s costs;

(c) the mother and Ms C be restrained by injunction from causing the child to leave the residence for the duration of the supervised time;

(d) such time to occur, not more than once per week, as follows:

(i) for the first three occasions, for three (3) hours;

(ii) for the next four occasions, for four (4) hours; and

(iii) thereafter, the time be for six (6) hours;

(e) the maternal grandmother be at liberty to have a support person present with her at changeover and all parties are directed to remain a respectful distance from each other.

For the purposes of paragraphs 5 and 6 herein, the mother cause Mr Lissa and Ms C to make, file and serve an Undertaking to the Court as to their supervision responsibilities.

The Independent Children’s Lawyer have liberty to approach Chambers in the event that:

(a) the Contact Centre raises any concerns about either party; and/or

(b) the professional supervisor raises a concern about what occurred during any relevant changeover;

(d) the ICL has any concerns about the public place nominated for the purposes of paragraph 5(c) herein.

AND THE COURT FURTHER ORDERS THAT:

All extant applications remain adjourned to this Court on 15 March 2021 at 9.30am for directions (“the directions hearing”).

10.

Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the date of the next directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

AND THE COURT NOTES THAT:

(A) These Orders followed an interim hearing heard on 7 September 2020.

(B) These Orders should be read together with the Orders made on 11 March 2020, 23 July 2020 and 7 September 2020.

(i) receive an update on the progress of the parenting arrangements;

(ii) consider the expert report or, likely release date;

(iii) whether the First Respondent should be re-served; and

(iv) in the event that the parties remain in dispute, ascertain the ambit of the dispute and make further directions.

(D) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

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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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