PANDELL & WALBURG (No.2) - [2020] FCCA 1853

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDELL & WALBURG (No.2)

[2020] FCCA 1853

Catchwords:
FAMILY LAW – Contravention – where compliance with earlier orders is impacted by a medical condition of the child and health concerns in respect of the COVID 19 pandemic – where the father files an Application in a Case in the COVID-19 list deposing that he has not physically seen the child since 22 March 2020 – where the mother provides medical evidence as to the child’s condition and concerns as to the COVID-19 pandemic – where the initial medical evidence is of a general nature – where it is directed that additional medical evidence be provided to the court – where the mother ultimately agrees that the child is to resume spending time with the father – where it is appropriate to also order a provision of makeup time between the father and the child – where no costs submissions were made by the parties at the hearing – where there are no orders as to costs.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC, 70NAE, 117(1)

Joint Practice Direction 3: JPD 3 of 2020 – The COVID-19 List

Media Release – Statement from the Hon. Will Alstergren – Parenting Orders and Covid-19 (26 March 2020)

Applicant:

MR PANDELL

Respondent:

MS WALBURG

File Number:

NCC 2074 of 2018

Judgment of:

Chief Judge Alstergren

Hearing date:

29 June 2020

Date of Last Submission:

29 June 2020

Orders pronounced:

29 June 2020

Delivered at:

Melbourne

Delivered on:

13 July 2020

REPRESENTATION

Solicitors for the Applicant:

Gianacas Argiris Mcdonald

Solicitors for the Respondent:

Beaudesert Legal

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Newcastle Family Law

ORDERS

The father shall resume spending time with the child on Thursday 2 July 2020, pursuant to order 3(a) of the orders dated 1 March 2019.
Order 3(b) of the orders dated 1 March 2019 be varied to provide that the father shall spend time with the child each Sunday from 9am to 6pm.
The father have make-up time with the child commencing next Saturday 4 July 2020, on 4 occasions as follows:
(a)The father spend time with the child on Saturday 4 July 2020 from 9am to 1pm; and
(b)The father spend time with the child each alternate Saturday thereafter, specifically on 18 July 2020, 1 August 2020 and 15 August 2020, from 9am to 4pm.
Judgment be reserved.

AND THE COURT NOTES THAT

(A)The medical evidence regarding the risks posed by COVID-19 in relation to a medical condition is insufficient to show that the withholding of the child was unreasonable.
(B)The letter from City B Paediatric Clinic dated 5 June 2020 differs from medical evidence provided in letters and medical certificates from the child’s general practitioner as annexed to the Affidavit filed by the father on 4 May 2020 and to the Affidavit filed by the mother in response on 8 May 2020.
(C)The court reserves the right to make orders in relation to make-up time in the event there…

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 PANDELL & WALBURG (No.2)

Details

AGLC: PANDELL & WALBURG (No.2) [2020] FCCA 1853
Case: [2020] FCCA 1853
Decision Date: 13 July 2020

CaseChat Overview and Summary

The matter of *Pandell & Walburg (No.2)* came before Chief Judge Alstergren. The dispute concerned parenting orders, specifically the father's time with the child and the mother's compliance with previous orders.

The court was required to determine whether the mother's withholding of the child from the father was reasonable, given the medical evidence presented regarding COVID-19 risks and a specific medical condition. The court also considered discrepancies between various medical reports and certificates provided by the parties.

Chief Judge Alstergren reasoned that the medical evidence concerning COVID-19 risks was insufficient to establish that the mother's withholding of the child was unreasonable. The court noted a divergence between the medical evidence from the City B Paediatric Clinic and that provided by the child's general practitioner. Consequently, the court made specific orders regarding the resumption of the father's time with the child, including variations to existing orders and provision for make-up time. The court reserved judgment and noted that parties were attending Family Report interviews.

Orders

Orders of the court

The father shall resume spending time with the child on Thursday 2 July 2020, pursuant to order 3(a) of the orders dated 1 March 2019.

Order 3(b) of the orders dated 1 March 2019 be varied to provide that the father shall spend time with the child each Sunday from 9am to 6pm.

The father have make-up time with the child commencing next Saturday 4 July 2020, on 4 occasions as follows:

(a) The father spend time with the child on Saturday 4 July 2020 from 9am to 1pm; and

(b) The father spend time with the child each alternate Saturday thereafter, specifically on 18 July 2020, 1 August 2020 and 15 August 2020, from 9am to 4pm.

Judgment be reserved.

AND THE COURT NOTES THAT

(A) The medical evidence regarding the risks posed by COVID-19 in relation to a medical condition is insufficient to show that the withholding of the child was unreasonable.

(B) The letter from City B Paediatric Clinic dated 5 June 2020 differs from medical evidence provided in letters and medical certificates from the child’s general practitioner as annexed to the Affidavit filed by the father on 4 May 2020 and to the Affidavit filed by the mother in response on 8 May 2020.

(C) The court reserves the right to make orders in relation to make-up time in the event there is future non-compliance with parenting orders by the mother.

(D) The parties are attending Family Report interviews on 10 July 2020.

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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