Needham & Shao - [2022] FedCFamC1F 914

Federal Circuit and Family Court of Australia
(DIVISION 1)
Needham & Shao [2022] FedCFamC1F 914

File number(s): SYC 5643 of 2020

Judgment of: ALTOBELLI J

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – PARENTING – Interim application pending a part-heard final hearing – Spend time with arrangements – Where the Independent Children’s Lawyer and expert support an increase in time with the father – Where it is ordered time should not increase pending the part-heard final hearing – Conservative child-focused approach.

Cases cited: Needham & Shao [2021] FamCA 576

Division: Division 1 First Instance

Number of paragraphs: 28

Date of last submission/s: 21 October 2022

Date of hearing: 13 October 2022

Place: Sydney (via videoconference)

Counsel for the Applicant: Ms Gillies SC

Solicitor for the Applicant: Farrar Gesini Dunn Sydney

The Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Ms Messner

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law
ORDERS

SYC 5643 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR NEEDHAM

Applicant

AND:
MS SHAO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

11 NOVEMBER 2022

THE COURT ORDERS THAT:
1.Orders 5 of the orders dated 6 August 2021 is discharged.
2.The Respondent mother facilitate a FaceTime call between X and the Applicant father each Wednesday between 5pm and 5.30pm, with the mother to instigate the call, guide and actively encourage X to participate.
3.All other interim applications in this matter are otherwise dismissed.

THE COURT NOTES THAT:
A.The matter remains listed for final hearing (part-heard) on 31 January 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Needham & Shao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)
ALTOBELLI J:

This matter continues to be about X who is now three years old. The question for this Court is whether, and if so, how, the existing parenting orders relating to X should be changed pending the conclusion of the final hearing that is now listed for three days commencing on 31 January 2023. It is common ground that the judgment will not be immediately available after the conclusion of the final hearing given the complex issues raised in this case. Thus, the Court and the parties…

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 Needham & Shao

Details

AGLC: Needham & Shao [2022] FedCFamC1F 914
Case: [2022] FedCFamC1F 914
Decision Date: 11 November 2022

CaseChat Overview and Summary

Needham & Shao is a family law case concerning the arrangements for a child, X, spending time with his father. The mother and father of X were engaged in a dispute over parenting arrangements, with the father seeking an increase in the time he spent with X. The Independent Children’s Lawyer and an expert supported the father’s request for more time with X. The case was before the Family Court of Australia, which had to decide whether to increase the father's time with X pending a part-heard final hearing.

The court was required to balance the child’s welfare with the need to maintain stability in his life. It considered the recommendations of the Independent Children’s Lawyer and the expert, but also adopted a conservative approach, given the interim nature of the application. The court determined that it was not appropriate to increase the father's time with X until the final hearing, to avoid potential disruption to the child’s routine and stability.

After considering the evidence and arguments presented, the court discharged the previous orders that allowed for an increase in time with the father. However, it ordered that the mother facilitate a FaceTime call between X and the father each Wednesday between 5 pm and 5.30 pm, with the mother initiating the call and encouraging X to participate. The court dismissed all other interim applications in the matter.

In summary, the court maintained the status quo pending the final hearing, ensuring the child’s welfare remained the paramount consideration while allowing for some engagement between X and his father through a supervised FaceTime call.

Orders

Orders of the court

1. Orders 5 of the orders dated 6 August 2021 is discharged.

2. The Respondent mother facilitate a FaceTime call between X and the Applicant father each Wednesday between 5pm and 5.30pm, with the mother to instigate the call, guide and actively encourage X to participate.

3. All other interim applications in this matter are otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 5643 of 2020
Judgment of:	ALTOBELLI J
Date of judgment:	11 November 2022
Catchwords:	FAMILY LAW – PARENTING – Interim application pending a part-heard final hearing – Spend time with arrangements – Where the Independent Children’s Lawyer and expert support an increase in time with the father – Where it is ordered time should not increase pending the part-heard final hearing – Conservative child-focused approach.
Cases cited:	Needham & Shao [2021] FamCA 576
Division:	Division 1 First Instance
Number of paragraphs:	28
Date of last submission/s:	21 October 2022
Date of hearing:	13 October 2022
Place:	Sydney (via videoconference)
Counsel for the Applicant:	Ms Gillies SC
Solicitor for the Applicant:	Farrar Gesini Dunn Sydney
The Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Ms Messner
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Sydney Central Family Law

SYC 5643 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR NEEDHAM Applicant
AND:	MS SHAO Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	ALTOBELLI J
DATE OF ORDER:	11 NOVEMBER 2022