Maddison and Maddison - [2016] FCCA 2712

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDISON & MADDISON

[2016] FCCA 2712

Catchwords:
FAMILY LAW – Interim arrangements for children – children previously resident in Adelaide in care of mother – mother has unilaterally relocated children to Western Australia – allegations of family violence – father asserts he has strong relationship with children – no proposals as to how children may interact with father – best interests.

Legislation:

Family Law Act 1975, ss.4A, 4AB, 60CC, 61DA

Cases cited:
In the marriage of Patsalou (1994) 18 Fam LR 426
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66
U v U (2002) FLC 93-112

Applicant:

MR MADDISON

Respondent:

MS MADDISON

File Number:

ADC 1590 of 2016

Judgment of:

Judge Brown

Hearing date:

28 July 2016

Date of Last Submission:

28 July 2016

Delivered at:

Adelaide

Delivered on:

28 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Lewis

Solicitors for the Applicant:

Legal Services Commission

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

Adelaide Family Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The children X born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008 live with the mother.
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 (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008 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.
The mother return the children to live in the metropolitan area of Adelaide no later than 30 September 2016.
In the period of the adjournment the independent children’s lawyer when appointed is authorised to request the father to undergo no more than three (3) random supervised drug screen tests.
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 1 November 2016.
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…

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 Maddison and Maddison

Details

AGLC: Maddison and Maddison [2016] FCCA 2712
Case: [2016] FCCA 2712
Decision Date: 28 July 2016

CaseChat Overview and Summary

This matter concerned an application before Judge Brown in the Federal Circuit Court of Australia, involving the parents of three children, X, Y, and Z. The central dispute revolved around the living arrangements for the children and the father's contact with them, with the court ultimately making orders regarding their residence, the appointment of an Independent Children's Lawyer, and the preparation of a family report.

The court was required to determine the primary residence of the children, the necessity and role of an Independent Children's Lawyer, and the terms of the father's contact with the children. Furthermore, the court needed to consider the preparation of a family report to assist in determining the children's best interests, including specific matters to be addressed in the assessment, and the disclosure of that report. The court also sought information from Families SA and the South Australian Police regarding any notifications or assessments related to child abuse or family violence concerning the children.

In reaching its decision, the court applied provisions of the *Family Law Act 1975*, including sections 68L concerning the appointment of an Independent Children's Lawyer, 62G(2) regarding family reports, and sections 60CC, 61DA, and 65DAA which outline considerations for determining the best interests of a child. The court ordered that the children live with the mother and that she return them to the metropolitan area of Adelaide by a specified date. An Independent Children's Lawyer was appointed to represent the children's interests, and the parties were directed to attend a family report assessment. The court also made specific orders for the father's telephone contact with the children and requested relevant documentation from Families SA and the South Australian Police. The matter was adjourned for further consideration of future arrangements for the children to spend time with the father.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The children X born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008 live with the mother.

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 (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008 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.

The mother return the children to live in the metropolitan area of Adelaide no later than 30 September 2016.

In the period of the adjournment the independent children’s lawyer when appointed is authorised to request the father to undergo no more than three (3) random supervised drug screen tests.

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 1 November 2016.

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.

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.

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.

10.

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/ren 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. Section121 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.

11.

Pursuant to section 69ZW of the Family Law Act, Families SA and the South Australian Police are ordered to provide to the court on or before 25 August 2016 the following documents:

(a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

(b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

12.

The father continue to have telephone contact with the children each Saturday at 5:00pm (South Australian time) with the mother to telephone the father’s mobile and put the children on the telephone.

13.

Further consideration of the matter is adjourned to 14 October 2016 at 9:30am for directions and to see how the interviews for the family report are progressing and determine any future arrangements for the children to spend time with the father.

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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