NUSKE & GRICE - [2014] FCCA 3102

FEDERAL CIRCUIT COURT OF AUSTRALIA

NUSKE & GRICE

[2014] FCCA 3102

Catchwords:
FAMILY LAW – Parenting – future care arrangements – father seeking suspension of existing interim orders providing for time between the children and the mother – orders made by consent for parentage testing procedures to be conducted – allegations of sexual abuse – father seeks mother have supervised time with children – unacceptable risk of sexual abuse not substantiated.

Legislation:

Family Law Act 1975 (Cth), s.65F

Johnson & Page [2007] FamCA 1235
Deacon & Castle [2013] FCCA 691

Applicant:

MR NUSKE

Respondent:

MS GRICE

File Number:

AYC 361 of 2014

Judgment of:

Judge Harman

Hearing date:

11 December 2014

Date of Last Submission:

11 December 2014

Delivered at:

Albury

Delivered on:

11 December 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Avery of Northey Legal

Solicitors for the Respondent:

Ms Coady of Louise Coady Family Lawyers Pty Limited

Solicitors for the Independent Children’s Lawyer:

Ms Terrill of Loretta Terrill Family Lawyer

ORDERS

Pursuant to s.62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit A.
The matter is adjourned for further mention and directions to 15 June 2015 at 2pm.
Direct the parties attend in person whether legally represented or not on 15 June 2015 and subject to the Family Report having been released in a timely fashion then each of the parties are to have read the report and are to have considered any recommendations contained therein prior to that appearance and be in a position to:
(a)Provide full and proper instructions to their legal representatives;
(b)Advise the Court of orders proposed by them (if different to those proposed in their respective Application and Response);
(c)Identify the judiciable issues that may require hearing;
(d)Address means by which the proceedings might be brought to a conclusion other than by hearing (such as further Family Dispute Resolution, family counselling or other action);
(e)Advise their position as regards any recommendation/s made by the report writer as to family counselling or participation in any course program or service; and
(f)If hearing time is sought, to advise the witnesses proposed to be called and a realistic estimation of the hearing time required to complete the matter to Judgement.
By consent and pursuant to section 69W of the Family Law Act 1975 parentage testing procedures shall be carried out in relation to the following:
(a)X born (omitted) 2010;
(b)Ms Grice born (omitted) 1991; and
(c)Mr Nuske born (omitted) 1988.
The mother and the alleged father shall contact a parentage testing agency agreed between them within seven (7) days to complete all necessary documentation in order for the DNA testing to take place.
The parties shall each pay half the cost of the testing procedure and ensure that their share of the cost is forwarded to the testing agency with the completed documentation.
The parties shall ensure they submit to the testing within 28 days from the date of…

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.

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Details

AGLC: NUSKE & GRICE [2014] FCCA 3102
Case: [2014] FCCA 3102
Decision Date: 11 December 2014

CaseChat Overview and Summary

This matter came before Judge Harman concerning a dispute between Ms Grice and Mr Nuske. The proceedings involved applications related to parenting and parentage.

The court was required to determine the parentage of a child, X, and to make directions regarding the preparation of a family report and the future conduct of the proceedings. The court also needed to consider the dismissal of an application filed on 20 November 2014.

The court ordered, by consent, that parentage testing procedures be carried out in relation to X, Ms Grice, and Mr Nuske, pursuant to section 69W of the Family Law Act 1975. The parties were directed to arrange for the testing within specified timeframes and to share the costs equally. A Family Consultant report was also ordered to be prepared. The matter was adjourned for further mention and directions, with parties required to attend in person and be prepared to discuss the report's recommendations, potential settlement avenues, and any proposed hearing. The application filed on 20 November 2014 was dismissed.

Orders

Orders of the court

Pursuant to s.62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit A.

The matter is adjourned for further mention and directions to 15 June 2015 at 2pm.

Direct the parties attend in person whether legally represented or not on 15 June 2015 and subject to the Family Report having been released in a timely fashion then each of the parties are to have read the report and are to have considered any recommendations contained therein prior to that appearance and be in a position to:

(a) Provide full and proper instructions to their legal representatives;

(b) Advise the Court of orders proposed by them (if different to those proposed in their respective Application and Response);

(d) Address means by which the proceedings might be brought to a conclusion other than by hearing (such as further Family Dispute Resolution, family counselling or other action);

(e) Advise their position as regards any recommendation/s made by the report writer as to family counselling or participation in any course program or service; and

(f) If hearing time is sought, to advise the witnesses proposed to be called and a realistic estimation of the hearing time required to complete the matter to Judgement.

By consent and pursuant to section 69W of the Family Law Act 1975 parentage testing procedures shall be carried out in relation to the following:

(a) X born (omitted) 2010;

(b) Ms Grice born (omitted) 1991; and

The mother and the alleged father shall contact a parentage testing agency agreed between them within seven (7) days to complete all necessary documentation in order for the DNA testing to take place.

The parties shall each pay half the cost of the testing procedure and ensure that their share of the cost is forwarded to the testing agency with the completed documentation.

The parties shall ensure they submit to the testing within 28 days from the date of these orders.

The mother shall ensure that the child submits to the DNA testing as advised by the Agency.

Dismiss the Application in a Case filed 20 November 2014 and remove that issue from the list of cases awaiting hearing.

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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