Nelson and Wade - [2017] FCCA 379

FEDERAL CIRCUIT COURT OF AUSTRALIA

NELSON & WADE

[2017] FCCA 379

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged two years – child lives with mother in (omitted) – father seeks to spend time with child – parties have no history of parenting child consensually – allegations of family violence made against father by mother – mother has significant mental health issues – father has no relationship with child – father seeks to spend unsupervised time with child – (omitted) has no facilities for professional supervision – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
B & B (1993) FLC 92-357
Mazorski v Albright (2007) 37 FamLR 518

Applicant:

MS NELSON

Respondent:

MR WADE

File Number:

NCC 2167 of 2016

Judgment of:

Judge Brown

Hearing date:

21 February 2017

Date of Last Submission:

21 February 2017

Delivered at:

Adelaide

Delivered on:

2 March 2017

REPRESENTATION

Counsel for the Applicant:

Ms Storey

Solicitors for the Applicant:

Rachel Storey & Associates

Counsel for the Respondent:

Mr Craney

Solicitors for the Respondent:

Doyle Kingston Swift

ORDERS

Until further or other order the child [X] born (omitted) 2014 live with the mother.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 19 May 2017.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if…

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 Nelson and Wade

Details

AGLC: Nelson and Wade [2017] FCCA 379
Case: [2017] FCCA 379
Decision Date: 2 March 2017

CaseChat Overview and Summary

This matter concerned an application before Judge Brown of the Federal Circuit Court of Australia, involving parties identified as Nelson and Wade, and their child, [X]. The core of the dispute revolved around the living arrangements for the child and the process for determining the child's best interests.

The court was required to determine the interim living arrangements for the child, [X], and to establish a framework for a comprehensive family report to inform future decisions. Specifically, the court needed to consider the matters outlined in sections 60CC, 61DA, and 65DAA of the *Family Law Act 1975*, including the child's views and the factors affecting the weight to be given to those views, as well as any other matters deemed important to the child's welfare and best interests.

Judge Brown ordered that the child, [X], would live with the mother until further order. To facilitate a thorough assessment of the child's best interests, the court directed the parties and the child to attend upon a Regulation 7 practitioner for the preparation of a family report. This report was to include interviews with the parties, the child, and relevant family members, observed interactions between the child and the parties, and an assessment of the child's expressed views and the weight to be attributed to them. The court also stipulated the matters to be covered in the report, referencing specific sections of the *Family Law Act 1975*, and directed that solicitors for the parties provide all filed documents to the report writer. The court further outlined the process for the report's release and potential dissemination to other bodies, subject to objection and noting the strictures of section 121 of the *Family Law Act 1975* regarding publication of proceedings. The matter was adjourned for further consideration.

Orders

Orders of the court

Until further or other order the child [X] born (omitted) 2014 live with the mother.

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 19 May 2017.

The family assessment to deal with the following matters:

(a) to include interviews with the parties, the child and relevant family members;

(b) observed interaction between the child and the parties;

(c) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(d) the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

(e) any other matters that the family assessor considers important to the welfare or best interests of the said child.

The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference

NOTING:

A. At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

C. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

Further consideration of the matter is adjourned to 8 June 2017 at 9:30am in (omitted).

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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