Noakes and Cullen and Ors - [2016] FCCA 1815

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOAKES & CULLEN & ORS

[2016] FCCA 1815

Catchwords:
FAMILY LAW – Parenting – interim dispute over arrangements for 5 year old child – where all parties have reached agreement as to interim arrangements – where ICL refuses to consent to the agreement – where ICL with the support of recommendation of the family report writer argues that time with the biological father should increase at the sacrifice of time with the biological mother and stepfather – Held that the arrangements reached by the parties reflect the arrangement which is in the child’s best interests and interim orders made as per that arrangement.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, Pt VII

Cases cited:

Goode & Goode (2006) FLC 93-286

Harris & Caker [2010] FAMCA 1046

Mazorski & Albright (2008) 37 FamLR
Moose & Moose [2008] FamCACF 108

Applicant:

MS NOAKES

First Respondent:

MR CULLEN

Second Respondent:

MR NOAKES

Intervenor:

MS PENFOLD

File Number:

BRC 7626 of 2011

Judgment of:

Judge L. Turner

Hearing date:

16 June 2016

Date of Last Submission:

16 June 2016

Delivered at:

Brisbane

Orders pronounced on:

7 July 2016

Reasons provided on:

26 July 2016

REPRESENTATION

Solicitors for the Applicant:

Northside Lawyers & Consultants

The First Respondent appeared in person

Solicitors for the Second Respondent:

Gary Rolfe Solicitors

Counsel for the Intervenor:

Ms Galbraith

Solicitors for the Intervenor:

Hm Lawyers

Counsel for the Independent Children’s Lawyer:

Mr George

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the undertaking provided by Ms L on 30 October 2015 be discharged.
That the child X born (omitted) 2011 lives with the Intervenor MS PENFOLD.
That the child spends time with each of the other parties on a 9-week rotating cycle as outlined in Annexure “A” to these Orders.
That the child also spend time with Mr Cullen each third Monday each month commencing Monday 4 July 2016, with the Mr Cullen to collect the child from the mother’s residence at 8:15am on Monday morning and deliver the child to school and collect the child from school at 2:30pm and return to the mother’s residence at 4:30pm.
That for the purpose of the mother’s time with the child, the time will be supervised by her mother, Ms E and except as otherwise agreed, Ms Penfold will drop X to Ms B’s residence at the commencement of time and collect X at the conclusion of time.
That for the purpose of Mr Noakes’s time with the child, the time will be supervised by his mother Ms L with changeover to occur at (omitted) in (omitted).
That if any party cancels or does not attend (other than Ms Penfold) the stipulated or agreed times then there will be no make-up time.
That if Ms Penfold cancels the visit, Ms Penfold will provide a reason and/or a medical certificate (if the child is sick) to the other party who was to spend time with the child.
That if Ms Penfold cancels the visit,…

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 Noakes and Cullen and Ors

Details

AGLC: Noakes and Cullen and Ors [2016] FCCA 1815
Case: [2016] FCCA 1815
Decision Date: 26 July 2016

CaseChat Overview and Summary

This matter concerned an application before Judge L. Turner in the Federal Circuit Court of Australia, involving parties identified as Noakes, Cullen, Ms Penfold (Intervenor), and Ms L. The dispute revolved around parenting arrangements for a child, X, born in 2011, and the specific terms of contact and care for the child. The court was required to determine the living arrangements for X, the schedule for X to spend time with each of the parties, and the conditions under which such time would occur, including supervision and communication protocols.

The court was tasked with establishing a comprehensive parenting order that addressed the practicalities of X's daily life, including schooling and extracurricular activities, while also safeguarding the child's emotional well-being. Key legal issues included the allocation of parental responsibility, the formulation of a time-sharing arrangement that balanced the needs of all parties with the best interests of the child, and the implementation of measures to ensure respectful communication and a stable environment for X. The court also considered the role of family consultants and the process for preparing a family report to assist in determining the child's welfare.

In its reasoning, the court applied principles of family law aimed at promoting the best interests of the child. The orders reflect a detailed consideration of the child's living arrangements, with X to live with the Intervenor, Ms Penfold. A complex rotating schedule for time spent with the other parties was established, incorporating specific daily arrangements for Mr Cullen and supervised time for both the mother and Mr Noakes. The court also imposed strict conditions regarding communication between the parties, prohibiting discussion of adult issues in the child's presence and requiring respectful discourse. Furthermore, the court mandated the preparation of a family report by a Family Consultant, outlining specific areas of inquiry relevant to the child's welfare and the factors under section 60CC of the *Family Law Act 1975*.

The court made detailed orders regarding the discharge of an undertaking by Ms L, the primary residence of the child X with Ms Penfold, and a structured time-sharing arrangement with the other parties. These orders included provisions for supervision of contact, communication protocols, and the involvement of schools and health providers. The court also directed the parties and the child to attend upon a Family Consultant for the preparation of a family report, with the Federal Circuit Court to bear the costs of this report. The matter was adjourned for mention.

Orders

Orders of the court

That the undertaking provided by Ms L on 30 October 2015 be discharged.

That the child X born (omitted) 2011 lives with the Intervenor MS PENFOLD.

That the child spends time with each of the other parties on a 9-week rotating cycle as outlined in Annexure “A” to these Orders.

That the child also spend time with Mr Cullen each third Monday each month commencing Monday 4 July 2016, with the Mr Cullen to collect the child from the mother’s residence at 8:15am on Monday morning and deliver the child to school and collect the child from school at 2:30pm and return to the mother’s residence at 4:30pm.

That for the purpose of the mother’s time with the child, the time will be supervised by her mother, Ms E and except as otherwise agreed, Ms Penfold will drop X to Ms B’s residence at the commencement of time and collect X at the conclusion of time.

That for the purpose of Mr Noakes’s time with the child, the time will be supervised by his mother Ms L with changeover to occur at (omitted) in (omitted).

That if any party cancels or does not attend (other than Ms Penfold) the stipulated or agreed times then there will be no make-up time.

That if Ms Penfold cancels the visit, Ms Penfold will provide a reason and/or a medical certificate (if the child is sick) to the other party who was to spend time with the child.

That if Ms Penfold cancels the visit, Ms Penfold will use her best endeavours to provide made up time to the other party as soon as reasonably practicable.

10.

That during the time the child is with any party, that party shall:

(a) respect the privacy of the other party and not question the child about the personal life of the other party; and

(b) speak of the other parties respectfully.

11.

That each of the parties is restrained from discussing adult issues between the other parties with the child, or within the hearing of the child.

12.

That Ms Penfold, Ms Noakes, Mr Noakes and Mr Cullen each have authority to contact the child’s school and obtain at their cost any information regarding the child’s progress at school including photos, school reports and newsletters.

13.

That Ms Penfold, Ms Noakes, Mr Noakes and Mr Cullen are each permitted to attend all parent/teacher interviews, sports days and any extra-curricular activity involving the child that parents are invited by the school to attend, provided that each party shall be of good behaviour to the others.

14.

That Ms Penfold, Ms Noakes and Mr Cullen are each authorised by these Orders to obtain, at their request and cost from the child’s medical or other allied health providers, any information or reports relating to the child.

15.

That each party be at liberty to attend all extra-curricular and school activities attended by the child including but not limited to Easter hat parades, sports carnivals and events, award ceremonies and soccer provided that the parties conduct themselves in an appropriate manner.

16.

That the parties agree to only attend the child’s soccer on their weekend with the child unless otherwise agreed.

17.

That each party be restrained insulting or denigrating the other parties in the presence of hearing of the child and each party will ensure that any other person abides with this injunction.

18.

That Mr Noakes will continue to receive ongoing treatment with Mr A.

19.

That each party will read document P-4 to Ms Penfold’s affidavit, filed 29 May 2016 and use their best endeavours to comply with that document when caring for X.

20.

That each party is authorised to contact the Child Development Unit at (omitted), to discuss X’s development needs.

21.

That pursuant to Section 62G of the Family Law Act 1975 the parties and the child X born (omitted) 2011 attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court.

22.

That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child and the factors contained in s.60CC of the Act the following opinions should be included:

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

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

23.

That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child if the Court did not reach a conclusion which accorded with the child’s views.

24.

That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.

25.

That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

26.

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

27.

That unless a party objects, in writing, within fourteen (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 to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference.

28.

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

29.

That this matter be adjourned for Mention at 9:30am on 16 December 2016 in the Federal Circuit Court of Australia at Brisbane.

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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