MILLER & COOPER - [2015] FamCA 997

FAMILY COURT OF AUSTRALIA

MILLER & COOPER

[2015] FamCA 997

FAMILY LAW – CHILDREN – interim orders – where the proceedings are part heard – where the father seeks a recovery order and that the child live with him – where the mother seeks that all contact between the father and the child be suspended pending the outcome of police investigation of the father – where the mother alleges the father poses an unacceptable risk to the child – where the father remains steadfast in his denial of any inappropriate conduct – where both applications are dismissed – where the mother is restrained from allowing the child to attend any forensic interview without leave of the court – where consideration is given to leave to adduce evidence – where regard is had to the interests of justice in exercising the discretion to grant leave to re-open – where leave it given to the mother to reopen her case and reply upon her affidavit that she may be cross examined as to its contents and matters arising.

Family Law Act 1975 (Cth)

EB v CT (No 2) [2008] QSC 306
Summitt & Summitt & Ors (Re-Opening) (2009) FamCA 365

APPLICANT:

Mr Miller

RESPONDENT:

Ms Cooper

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

4728

2012

DATE DELIVERED:

13 November 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

5 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lindsay

SOLICITOR FOR THE APPLICANT:

Paul Doube Lawyers

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

UPON NOTING that Order 2 of Orders made 3 September 2015 continue in operation until further Order:

Orders

That the Applications in a Case of the father filed 30 October 2015 and of the mother filed 30 October 2015 be dismissed.
That subject to the giving of fourteen (14) days’ notice, the mother be restrained from allowing the child B born … 2009 to attend or to facilitate any forensic interview without first obtaining leave of the Court.
That leave is given to the mother to reopen her case and to rely upon her affidavit filed 30 October 2015 (document 71) NOTING that she may be cross examined as to its contents and matters arising therefrom.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4728 of 2012

Mr Miller

Applicant

And

Ms Cooper

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Cooper (“the mother”) seeks orders in the substantive proceedings as set out her Fifth Amended Initiating Application filed 3 September 2015.
Mr Miller (“the father”) seeks orders as set out in his Amended Response filed 1 June 2015.
The parties are in…

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 MILLER & COOPER

Details

AGLC: MILLER & COOPER [2015] FamCA 997
Case: [2015] FamCA 997
Decision Date: 13 November 2015

CaseChat Overview and Summary

In the matter of *Miller & Cooper*, Berman J of the Family Court of Australia considered applications filed by both the father and the mother on 30 October 2015. The dispute concerned the welfare of a child, B, born in 2009, and specifically, the circumstances under which the child might undergo a forensic interview.

The central legal issues before the court were whether the applications filed by the parents should be dismissed, and whether the mother should be restrained from facilitating a forensic interview of the child without prior court leave. The court also had to determine whether the mother should be granted leave to reopen her case and rely on a specific affidavit, subject to potential cross-examination.

Berman J reasoned that the applications filed by both parties were to be dismissed. The court imposed a restraint on the mother, requiring her to provide fourteen days' notice before allowing the child to attend or facilitate any forensic interview, and mandating that such an interview could only proceed with the court's leave. Furthermore, the mother was granted leave to reopen her case and rely on her affidavit filed on 30 October 2015, with the express condition that she would be subject to cross-examination regarding its contents and any related matters.

Orders

Orders of the court

That the Applications in a Case of the father filed 30 October 2015 and of the mother filed 30 October 2015 be dismissed.

That subject to the giving of fourteen (14) days’ notice, the mother be restrained from allowing the child B born … 2009 to attend or to facilitate any forensic interview without first obtaining leave of the Court.

That leave is given to the mother to reopen her case and to rely upon her affidavit filed 30 October 2015 (document 71) NOTING that she may be cross examined as to its contents and matters arising therefrom.

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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