Niem and Tong - [2018] FamCA 1072

FAMILY COURT OF AUSTRALIA

NIEM & TONG

[2018] FamCA 1072

FAMILY LAW – CHILDREN – Interim Parenting – Where significant change in children’s circumstances following fire in father’s home – Consideration of applicable principles – Orders made in best interests of the subject children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346,
Marvel & Marvel [2010] FamCAFC 101
MRR v GRR [2010] HCA 4
Niem & Tong [2016] FamCA 1089
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Niem

RESPONDENT:

Mr Tong

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

3572

2014

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

Maclarens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Steven Stefanou & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown Family Law

Orders

That parenting orders 1 to 6 inclusive and 11 made on 19 December 2016 be discharged.

That Pending Further Order:

That the mother have sole parental responsibility for the children C born … 2005 and D born … 2010.
That the children C and D live with the mother.
That the child C spend time with the father in accordance with her wishes.
That the child D spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication and in default of agreement the father shall spend supervised time with the child D at the DD Contact Service or such other community based contact service agreed to by the Independent Children’s Lawyer on each alternate Saturday for three hours commencing on the first Saturday after these orders with the cost of any such service to be paid for equally by the father and mother and provided that:
(a)In the event that the contact centre or service offers supervised time only at times which are less regular than specified then contact shall occur at the times that are offered by the contact centre or service.
(b)The mother must deliver the child D to and collect the child D from the contact centre or service at the times specified by the contact centre or service and on each occasion promptly leave the vicinity.
(c)If the contact centre or service during the currency of these orders declines or is unable to continue to provide its services, or the director of the contact centre or service recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on seven days written notice to the other party and the Court restore the matter to the list.

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

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 Niem and Tong

Details

AGLC: Niem and Tong [2018] FamCA 1072
Case: [2018] FamCA 1072
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the matter of *Niem and Tong*, Foster J of the Federal Circuit Court of Australia considered an application to vary existing parenting orders concerning two children, C and D. The dispute involved the parents' respective roles and responsibilities in relation to the children's upbringing and living arrangements.

The court was required to determine the best interests of the children, C and D, in light of the circumstances presented. This involved assessing the appropriate allocation of parental responsibility, the children's living arrangements, and the nature and extent of the time the children would spend with each parent.

Foster J discharged the previous parenting orders and made new orders pending further determination. The mother was granted sole parental responsibility for both children, and they were ordered to live with her. Child C was to spend time with the father according to her wishes. Child D's time with the father was to be agreed in writing by the parents, with a default provision for supervised contact at a specified contact service on alternate Saturdays for three hours, with costs shared equally. The order included specific conditions regarding the operation of the contact service and the process for varying the orders if the service became unavailable or recommended changes.

Orders

Orders of the court

That parenting orders 1 to 6 inclusive and 11 made on 19 December 2016 be discharged.

That Pending Further Order:

That the mother have sole parental responsibility for the children C born … 2005 and D born … 2010.

That the children C and D live with the mother.

That the child C spend time with the father in accordance with her wishes.

That the child D spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication and in default of agreement the father shall spend supervised time with the child D at the DD Contact Service or such other community based contact service agreed to by the Independent Children’s Lawyer on each alternate Saturday for three hours commencing on the first Saturday after these orders with the cost of any such service to be paid for equally by the father and mother and provided that:

(a) In the event that the contact centre or service offers supervised time only at times which are less regular than specified then contact shall occur at the times that are offered by the contact centre or service.

(b) The mother must deliver the child D to and collect the child D from the contact centre or service at the times specified by the contact centre or service and on each occasion promptly leave the vicinity.

(c) If the contact centre or service during the currency of these orders declines or is unable to continue to provide its services, or the director of the contact centre or service recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on seven days written notice to the other party and the Court restore the matter to the list.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.