MULLINS & LIEN - [2020] FCCA 3176

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLINS & LIEN

[2020] FCCA 3176

Catchwords:
FAMILY LAW – Application for interim care arrangements for children aged 5 and 6 – allegations of family violence in the parties’ marriage – lack of effective communication between the parties – best interests of the children – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Mazorski v Albright (2007) 37 FamLR 518

Applicant:

MR MULLINS

Respondent:

MS LIEN

File Number:

ADC 1430 of 2019

Judgment of:

Judge Brown

Hearing date:

9 November 2020

Date of Last Submission:

9 November 2020

Delivered at:

Adelaide

Delivered on:

27 November 2020

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Ms Read

Solicitors for the Respondent:

The Law Offices of Elizabeth Temnoff

Counsel for the Independent Children’s Lawyer:

Mr Hemsley

The Independent Children’s Lawyer:

Legal Services Commission of South Australia

UPON NOTING 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.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

That paragraphs 1 and 4 of the orders made on 25 November 2019 do continue.
During the Christmas 2020/2021 school holidays, the children X born 2014 and Y born 2015 (‘the children’) spend time with the parties in a week about arrangement with handovers to be at 4.30pm on Sundays, with the father to have the first week of said holidays commencing on 13 December 2020.
Notwithstanding order (2) hereof, the party who has the children in their care during the 2020/2021 Christmas holidays shall release the children to the other party during their period of time from 11.00am on Wednesday until 11.00am the following day.
For one week of the father’s time pursuant to order (2) hereof, order (3) hereof is suspended such that the father’s time will proceed for one week uninterrupted, such week to be agreed upon by the parties in writing.
The children spend further time with the father as follows:
(a)During all short school holiday periods in 2021:
(i)From 4.30pm on the Tuesday in the first week of the school holidays until 4.30pm on the following Saturday; and
(ii)From 4.30pm on the Thursday in the second week of the school holidays until the commencement of school on the following Monday.
(b)At any further times as shall be agreed…

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 MULLINS & LIEN

Details

AGLC: MULLINS & LIEN [2020] FCCA 3176
Case: [2020] FCCA 3176
Decision Date: 27 November 2020

CaseChat Overview and Summary

This matter concerned an application for interim care arrangements for two children, aged five and six. The dispute arose in the context of allegations of family violence between the parents and a lack of effective communication. The court was required to determine the best interests of the children in light of these circumstances.

The court's primary focus was on establishing interim parenting orders that would safeguard the children's welfare. This involved considering the matters outlined in section 60CC of the Family Law Act 1975, particularly the need to protect the children from family violence and to promote their relationship with both parents, subject to that protection. The court also had to address the practicalities of communication and handover arrangements between the parents.

The court made detailed orders regarding the children's time with each parent, including arrangements for the Christmas 2020/2021 school holidays, short school holiday periods in 2021, and specific times during the 2020 Christmas and 2021 Easter periods. Handovers were to occur at designated locations, and the children were to remain enrolled at the same school. The court also noted the application of section 102NA of the Family Law Act 1975, which restricts unrepresented parties from cross-examining other parties in proceedings involving family violence allegations. The matter was adjourned for further directions, including trial directions, and a final hearing was scheduled.

Orders

Orders of the court

UPON NOTING 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.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. That paragraphs 1 and 4 of the orders made on 25 November 2019 do continue.

2. During the Christmas 2020/2021 school holidays, the children X born 2014 and Y born 2015 (‘the children’) spend time with the parties in a week about arrangement with handovers to be at 4.30pm on Sundays, with the father to have the first week of said holidays commencing on 13 December 2020.

3. Notwithstanding order (2) hereof, the party who has the children in their care during the 2020/2021 Christmas holidays shall release the children to the other party during their period of time from 11.00am on Wednesday until 11.00am the following day.

4. For one week of the father’s time pursuant to order (2) hereof, order (3) hereof is suspended such that the father’s time will proceed for one week uninterrupted, such week to be agreed upon by the parties in writing.

5. The children spend further time with the father as follows:

5. (a) During all short school holiday periods in 2021:

5. (i) From 4.30pm on the Tuesday in the first week of the school holidays until 4.30pm on the following Saturday; and

5. (ii) From 4.30pm on the Thursday in the second week of the school holidays until the commencement of school on the following Monday.

5. (b) At any further times as shall be agreed in writing between the parties from time to time.

6. The children spend time with each of the parties during the 2020 Christmas period as follows:

6. (a) With the father:

6. (i) from 3.00pm Christmas Eve to 3.00pm Christmas Day.

6. (b) With the mother:

6. (i) from 3.00pm Christmas Day to 3.00pm Boxing Day.

7. The children spend time with each of their parents during the 2021 Easter period as follows:

7. (a) With the mother:

7. (i) From 10.00am on Maundy Thursday, 1 April 2021 until 10.00am on Easter Sunday, 4 April 2021.

7. (b) With the father:

7. (i) From 10.00am on Easter Sunday, 4 April 2021 until 10.00am on Monday, 5 April 2021.

8. All handovers that are to take place during school term time shall take place at school A, with all other handovers to take place inside the Suburb B Police Station.

9. The child X remain enrolled at school A.

10. The parties do all such things and sign all necessary documents to enrol the child Y in school A, to commence at the beginning of the school year in 2021.

11. The parties agree to jointly instruct a valuer to value the former matrimonial home, situated at C Street Suburb D SA.

12. Within 42 days the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

13. This matter be listed for final hearing before Judge Brown on 10, 11 & 12 November 2021 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.

14. The requirements of s.102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.

15. Further consideration of the matter is adjourned to 11 February 2021 at 9.30am for directions, including trial directions.

IT IS NOTED that publication of this judgment under the pseudonym Mullins & Lien is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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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