MAGAR & RASTOGI - [2017] FamCA 560

FAMILY COURT OF AUSTRALIA

MAGAR & RASTOGI

[2017] FamCA 560

FAMILY LAW – CHILDREN – Interim orders – Application by the mother to spend time with the child – Where the child was previously observed as having a positive relationship with the mother – Where the child subsequently refused to spend time with the mother – Where there appears to be no explanation for the child’s refusal to spend time with the mother – Where it is ordered that the parties undergo a s 62G(2) Family Law Act 1975 (Cth) assessment – Where the child should spend two nights in the mother’s care.

Family Law Act 1975 (Cth) ss 60CC, 67U

Rice & Asplund (1979) FLC 90-725
Langmeil & Grange [2013] FamCAFC 31
Marsden & Winch (2009) 42 Fam LR 1

APPLICANT:

Ms Magar

RESPONDENT:

Mr Rastogi

FILE NUMBER:

ADC

3356

2013

DATE DELIVERED:

4 August 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

5 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alevizos

SOLICITOR FOR THE APPLICANT:

Harry Alevizos

COUNSEL FOR THE RESPONDENT:

Mr Charman

SOLICITOR FOR THE RESPONDENT:

Ian Charman & Associates

Orders

That further consideration of the matter be adjourned to 14 September 2017 at 9.15am.
That during the period of the adjournment M (“the child”) born … 2013 shall spend time with the mother as follows:-
(a) From 10 am on 18 August 2017 to 4 pm on 20 August 2017.
That the father do deliver up the child to the Manager of the Court Childcare Facility in the Family Court of Australia, Adelaide Registry at 10 am on 18 August 2017 and that the Director of Child Dispute Services do cause the said child to be released into the care of the mother.
That upon delivery up of the child the father shall forthwith leave the precincts of the Family Court of Australia Registry.
That at the conclusion of the child’s time with the mother, the child to be returned to the father at the Suburb B Police Station.
That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon Ms G, family consultant, or such other family consultant as may be nominated by the Director of Child Dispute Services for the purpose of a family report to be commenced on 21 August 2017 at such times as may be advised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Magar & Rastogi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004…

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.

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Details

AGLC: MAGAR & RASTOGI [2017] FamCA 560
Case: [2017] FamCA 560
Decision Date: 4 August 2017

CaseChat Overview and Summary

This matter came before Berman J of the Family Court of Australia concerning an application by the mother for interim orders regarding time with the child. The dispute arose after the child, previously observed to have a positive relationship with the mother, subsequently refused to spend time with her, with no apparent explanation for this refusal.

The court was required to determine whether to make interim orders for the child to spend time with the mother, and to consider the appropriate steps for assessing the family's situation. The central legal issue was how to best facilitate the child's relationship with the mother in circumstances of unexplained refusal, while also ensuring the child's welfare.

Berman J applied the principles governing interim parenting orders, which require a consideration of the child's best interests and the need for a practical and safe arrangement pending final determination. The court noted the previous positive relationship between the child and mother and the lack of an explanation for the current refusal. Consequently, the court ordered that the parties and the child attend a family report assessment pursuant to s 62G(2) of the *Family Law Act 1975* (Cth).

The court made interim orders for the child to spend two nights with the mother, commencing on 18 August 2017, with specific arrangements for the handover and return of the child. Further consideration of the matter was adjourned to 14 September 2017.

Orders

Orders of the court

That further consideration of the matter be adjourned to 14 September 2017 at 9.15am.

That during the period of the adjournment M (“the child”) born … 2013 shall spend time with the mother as follows:-

(a) From 10 am on 18 August 2017 to 4 pm on 20 August 2017.

That the father do deliver up the child to the Manager of the Court Childcare Facility in the Family Court of Australia, Adelaide Registry at 10 am on 18 August 2017 and that the Director of Child Dispute Services do cause the said child to be released into the care of the mother.

That upon delivery up of the child the father shall forthwith leave the precincts of the Family Court of Australia Registry.

That at the conclusion of the child’s time with the mother, the child to be returned to the father at the Suburb B Police Station.

That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon Ms G, family consultant, or such other family consultant as may be nominated by the Director of Child Dispute Services for the purpose of a family report to be commenced on 21 August 2017 at such times as may be advised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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