PARFREY & YEATMAN - [2019] FCCA 3713

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARFREY & YEATMAN

[2019] FCCA 3713

Catchwords:
FAMILY LAW – Interim proceedings regarding care arrangements for twins aged seven years – allegations of exposure to family violence and abuse – nature of interim hearing – assessment of risk – best interests – meaningful relationship.

Legislation:

Family Law Act 1975 (Cth), ss.4(1); 4AB; 60B; 60CA; 60CC; 61DA; 65DAA; 67Z; 67ZBA; 67ZBB

Cases cited:
B & B (1993) FLC 92-357
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 92-286
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
SS v AH [2010] FamCAFC 13

Applicant:

MR PARFREY

Respondent:

MS YEATMAN

File Number:

ADC 5228 of 2017

Judgment of:

Judge Brown

Hearing date:

10 December 2019

Date of Last Submission:

10 December 2019

Delivered at:

Adelaide

Delivered on:

19 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr McQuade

Solicitors for the Applicant:

Howe Jenkin

Counsel for the Respondent:

Ms Cocks

Solicitors for the Respondent:

Barnes Brinsley Shaw Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER:

Upon the written undertaking of the father and Ms B handed to the Court on 10 December 2019;

The children X and Y both born in 2012 (hereinafter referred to as “the children”) live with the mother.
The children spend time with the Father as follows:
(a)During the summer holiday period at the conclusion of term four 2019, from 3.00pm on Friday 20 December 2019 until 3.00pm on Friday 27 December 2019, and each alternate week thereafter.
(b)During school terms (noting that the following pattern will resume after each set of school holidays as if it had been maintained during holiday periods):
(i)Each alternate weekend from the conclusion of school (or 3.00pm if not a school day) on Friday until the commencement of school (or 10.00am if not a school day) on Tuesday, commencing Friday 31 January 2020; and
(ii)Each intervening Tuesday from the conclusion of school until 7.00pm, commencing Tuesday 11 February 2020.
(c)During the school holiday period at the conclusion of term one 2020, from the conclusion of school on Friday 10 April 2020 until 3.00pm on Friday 17 April 2020 (with the children's time referred to in paragraph 2(b)(i) above to then recommence on Friday 24 April 2020).
In addition to paragraphs 1 and 2 herein, the children do spend time with the parties on special occasions as follows:
(a)With respect to Christmas:
(i)With the mother from 2.00pm on 24 December 2019 until 2.00pm on 25 December 2019; and
(ii)With the father from 2.00pm on 25 December 2019 until 2.00pm on 26 December 2019.
(b)On the children's birthday in 2019, with the father from 11.00am until 4.00pm.
The parties do facilitate the said children communicating with the other parent by telephone on two occasions each week at times to be agreed by the parties and, if the parties fail to reach agreement, on Tuesday and Sunday…

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 PARFREY & YEATMAN

Details

AGLC: Parfrey and Yeatman [2019] FCCA 3713
Case: [2019] FCCA 3713
Decision Date: 19 December 2019

CaseChat Overview and Summary

This matter concerned interim proceedings in the Family Court of Australia regarding the care arrangements for seven-year-old twins. The proceedings were brought by the mother and father, who had made allegations of exposure to family violence and abuse concerning the children.

The court was required to determine the nature of the interim hearing, specifically how to assess risk in circumstances involving allegations of family violence and abuse. The court also had to consider the paramount consideration of the children's best interests and the importance of maintaining a meaningful relationship between the children and each parent.

In its reasoning, the court acknowledged the heightened need for caution and a thorough assessment of risk at the interim stage, particularly when allegations of family violence are present. The court applied the principles of the *Family Law Act 1975* (Cth), emphasising that the children's best interests are the primary consideration. The court balanced the need to protect the children from harm with the importance of preserving their relationship with both parents, taking into account the undertakings provided by the father and Ms B.

The court made orders for the children to live with the mother, with specific interim time arrangements for the father, including during school holidays and on special occasions. The orders also included provisions for communication between the children and the non-resident parent, injunctions restraining the parties from discussing proceedings with or denigrating the other parent in the children's presence, and a requirement for an Update Family Assessment Report. The matter was adjourned for further consideration following receipt of the report and a settlement conference.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER:

Upon the written undertaking of the father and Ms B handed to the Court on 10 December 2019;

The children X and Y both born in 2012 (hereinafter referred to as “the children”) live with the mother.

The children spend time with the Father as follows:

(a) During the summer holiday period at the conclusion of term four 2019, from 3.00pm on Friday 20 December 2019 until 3.00pm on Friday 27 December 2019, and each alternate week thereafter.

(b) During school terms (noting that the following pattern will resume after each set of school holidays as if it had been maintained during holiday periods):

(i) Each alternate weekend from the conclusion of school (or 3.00pm if not a school day) on Friday until the commencement of school (or 10.00am if not a school day) on Tuesday, commencing Friday 31 January 2020; and

(ii) Each intervening Tuesday from the conclusion of school until 7.00pm, commencing Tuesday 11 February 2020.

(c) During the school holiday period at the conclusion of term one 2020, from the conclusion of school on Friday 10 April 2020 until 3.00pm on Friday 17 April 2020 (with the children's time referred to in paragraph 2(b)(i) above to then recommence on Friday 24 April 2020).

In addition to paragraphs 1 and 2 herein, the children do spend time with the parties on special occasions as follows:

(a) With respect to Christmas:

(i) With the mother from 2.00pm on 24 December 2019 until 2.00pm on 25 December 2019; and

(ii) With the father from 2.00pm on 25 December 2019 until 2.00pm on 26 December 2019.

(b) On the children's birthday in 2019, with the father from 11.00am until 4.00pm.

The parties do facilitate the said children communicating with the other parent by telephone on two occasions each week at times to be agreed by the parties and, if the parties fail to reach agreement, on Tuesday and Sunday at 5.30pm.

The parties each be retrained by way of injunction from:

(a) Discussing these proceedings with or in the presence, or within hearing, of the children,

(b) Showing or making accessible to the children any documents related to these proceedings;

(d) Questioning the children about the other parent, or that parent's partner, or that parent's household; and

(e) Permitting or allowing any other person to engage in the foregoing behaviours.

The parties do all things necessary to obtain an Update Family Assessment Report from Ms A, with such report to be released by 30 April 2020, with the costs of the Report to be equally shared by the parties.

Following receipt of the Update Family Assessment Report, the parties do participate in a without prejudice informal settlement conference with their legal representatives, which is to take place by 29 May 2020.

Further consideration of the matter is adjourned to 16 June 2020 at 9:30am.

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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