PELMORE & MICKELS - [2020] FCCA 3308

FEDERAL CIRCUIT COURT OF AUSTRALIA

PELMORE & MICKELS

[2020] FCCA 3308

Catchwords:
FAMILY LAW – Parenting – interim parenting – child born by way of altruistic gestational surrogacy procedure – where the applicant father seeks that the respondent father’s time be supervised – where there are assertions of risk – where the Court is unable to make findings in relation to contested allegations of family violence on an interim basis – where the child has a close and loving relationship with each parent – where the respondent has taken a number of positive steps to address his drug use – order for equal time.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61C, 65D, 65DAA

Cases cited:

M & M (1988) FLA 91-973

A & A & The Child Representative (1998) 22 FamLR 756

Goode v Goode (2006) FLC 93-286

Napier & Hepburn (2006) FLC 93-303

Johnson & Page (2007) FLC 93-344
Starr v Duggan [2009] FamCAFC 115

MRR v GR (2010) 240 CLR 461

SS & AH [2010] FamCAFC 13

Marvel v Marvel (2010) 240 FLR 367

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FLC 93-654

Keats & Keats [2016] FamCAFC 156

Grella & Jamieson [2017] FamCAFC 21

Bondelmonte v Bondelmonte [2017] 259 CLR 662

Masson v Parsons & Anors [2019] HCA 2

Applicant:

MR PELMORE

Respondent:

MR MICKELS

File Number:

SYC 1202 of 2020

Judgment of:

Judge Morley

Hearing date:

8 May 2020

Date of Last Submission:

18 May 2020

Delivered at:

Sydney

Delivered on:

17 November 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Jones of Adam Jones Solicitor

Solicitors for the Respondent:

Ms Lama of Lama Family Lawyers

ORDERS

Order 8 of the interim orders made on 8 April 2020 is vacated.

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

The child X born in 2017 will live with the Respondent as follows:
(a)In week 1, from 10:00AM on Saturday to 10:00AM on Thursday; and
(b)In week 2, from 10:00AM on Monday to 10:00AM on Wednesday.
That the child X live with Applicant at all other times.
That all of the time the child is in the Respondent’s care is to be supervised by on or other of the Respondent’s parents Mr B or Ms C, until the Respondent has provided to the Applicant a hair follicle testing result summary pursuant to the orders to be made today that indicates a negative result for all illicit drugs for which the Respondent’s hair sample is tested, such supervision to cease forthwith upon the receipt by the Applicant (either himself or through his solicitors) of such a clear result summary.
In the event that any hair follicle testing result summary shows a positive result for any of the illicit drugs for which the Respondent’s hair sample is tested, pursuant to these orders, then supervision for all the time during which the child is in the Respondent’s care must resume forthwith upon the said positive result summary coming to the Respondent’s notice, and that time should…

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 PELMORE & MICKELS

Details

AGLC: PELMORE & MICKELS [2020] FCCA 3308
Case: [2020] FCCA 3308
Decision Date: 17 November 2020

CaseChat Overview and Summary

In *Pelmore & Mickels*, heard before Judge Morley, the applicant father sought to vary interim parenting orders concerning their child, who was born via an altruistic gestational surrogacy. The applicant's primary concern was to have the respondent father's time with the child supervised, citing alleged risks. However, the Court was unable to make definitive findings on the contested allegations of family violence at this interim stage.

The central legal issue before the Court was how to best promote the child's welfare and best interests on an interim basis, given the inability to resolve serious allegations of family violence. The Court was required to balance the child's need for a relationship with both parents against the asserted risks, considering the existing close and loving relationship the child shared with each father.

Judge Morley reasoned that, in the absence of conclusive findings of risk, the child's best interests were served by maintaining a relationship with both parents. The Court noted the respondent father's positive steps in addressing his drug use, which weighed in favour of continued, albeit potentially supervised, contact. Ultimately, the Court determined that equal time was the appropriate interim arrangement. Consequently, Order 8 of the interim orders made on 8 April 2020 was vacated.

Orders

Orders of the court

ORDERS

1. Order 8 of the interim orders made on 8 April 2020 is vacated.

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.