Mafton and Salmet (No.2) - [2020] FCCA 903

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAFTON & SALMET (No.2)

[2020] FCCA 903

Catchwords:
FAMILY LAW – Urgent interim parenting hearing – father withholding child – father’s concern about risk to the children due to the pandemic and other factors.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(4), 60CC, 65C, 67T, 67U

United Nations Convention on the Rights of the Child

Cases cited:

M v M (1988) 166 CLR 76

Mafton & Salmet [2020] FCCA 256

Stott & Holgar and Anor [2017] FamCAFC 152

Applicant:

MS MAFTON

Respondent:

MR SALMET

File Number:

MLC 1873 of 2018

Judgment of:

Judge Harland

Hearing date:

2 April 2020

Date of Last Submission:

2 April 2020

Delivered at:

Melbourne

Delivered on:

2 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Heggie

Solicitors for the Applicant:

Nicholes Family Lawyers

The Respondent:

Appearing via telephone

Solicitors for the Independent Children’s Lawyer:

Ms Augustin of Victoria Legal Aid

ORDERS

The Father deliver the child X born in 2015 (“the child”) to the Maternal Aunt at the foyer of Suburb BB police station at 10:00am on Friday 3 April 2020.
The interim orders dated 15 May 2019 be suspended so that the child lives with the Maternal Aunt from 10:00am on Friday 3 April 2020 until 10am on Friday 10 April 2020.
The parties conduct a changeover of the child at the foyer of Suburb BB police station at 10:00am on Friday 10 April 2020.
Thereafter the interim orders dated 15 May 2019 remain in full force and effect, until the matter returns on 22 April 2020.
In the event the Father does not comply with Order 1 herein a recovery order pursuant to s.67U of the Family Law Act 1975 will issue without the need for a further court appearance.
The Maternal Aunt have liberty to apply to Chambers with respect to Order 5.

AND THE COURT NOTES THAT:

(A)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(B)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
(C)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(D)If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Mafton & Salmet (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1873 of 2018

MS MAFTON

Applicant

And

MR SALMET

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected…

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 Mafton and Salmet (No.2)

Details

AGLC: Mafton and Salmet (No.2) [2020] FCCA 903
Case: [2020] FCCA 903
Decision Date: 2 April 2020

CaseChat Overview and Summary

In *Mafton and Salmet (No.2)*, Judge Harland considered an application concerning the welfare of a child. The dispute involved the father and the maternal aunt, with the court being asked to make orders regarding the child's living arrangements and handover.

The court was required to determine the immediate living arrangements for the child, specifically whether the child should reside with the maternal aunt for a defined period. Furthermore, the court needed to consider the mechanism for the child's transfer between parties and the consequences of non-compliance with any orders made. The court also addressed the application of provisions relating to family violence and the cross-examination of parties in such circumstances.

Judge Harland ordered that the father deliver the child to the maternal aunt at a police station on a specified date and time. The interim orders were suspended to allow the child to live with the maternal aunt for a week, with a subsequent changeover to be conducted at the same location. The court stipulated that the interim orders would then resume full effect. Crucially, the court warned that if the father failed to comply with the delivery order, a recovery order under s 67U of the *Family Law Act 1975* would issue automatically. The maternal aunt was granted liberty to apply to chambers regarding this recovery order. The court also provided important notes regarding the application of s 102NA of the *Family Law Act 1975* concerning family violence and the implications for unrepresented parties wishing to cross-examine others, including information about the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

Orders

Orders of the court

The Father deliver the child X born in 2015 (“the child”) to the Maternal Aunt at the foyer of Suburb BB police station at 10:00am on Friday 3 April 2020.

The interim orders dated 15 May 2019 be suspended so that the child lives with the Maternal Aunt from 10:00am on Friday 3 April 2020 until 10am on Friday 10 April 2020.

The parties conduct a changeover of the child at the foyer of Suburb BB police station at 10:00am on Friday 10 April 2020.

Thereafter the interim orders dated 15 May 2019 remain in full force and effect, until the matter returns on 22 April 2020.

In the event the Father does not comply with Order 1 herein a recovery order pursuant to s.67U of the Family Law Act 1975 will issue without the need for a further court appearance.

The Maternal Aunt have liberty to apply to Chambers with respect to Order 5.

AND THE COURT NOTES THAT:

(A) If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(B) Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(C) Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(D) If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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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