Peterson & Cochrane - [2008] FamCA 597

FAMILY COURT OF AUSTRALIA

PETERSON & COCHRANE

[2008] FamCA 597

FAMILY LAW – CHILDREN – Parenting proceedings – Father charged with 19 criminal offences involving young children – bail conditions varied and father renewed earlier application for supervised time with 8 year old daughter – opposed by mother – criminal trial not anticipated before August 2009 – application dismissed – suspension of earlier orders retained.

Family Law Act 1975 (Cth)

M and M (1988) 166 CLR 1235
Johnson and Page (2007) FLC 93-344
R and C (Unreported, Full Court, Fogarty Baker and Lindenmayer JJ, 26 June 1993)
A and A (1988) FLC 92-800
B and B (1993) FLC 92-357
N v S (1996) FLC 92-655
Goode (2006) FLC 93-286

APPLICANT:

Mr Cochrane

RESPONDENT:

Ms Peterson

FILE NUMBER:

CSC

1098

2007

DATE DELIVERED:

1 August 2008

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Moore J

HEARING DATE:

31 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Benson

SOLICITOR FOR THE APPLICANT:

Murray Lyons Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hamwood – by telephone

SOLICITOR FOR THE RESPONDENT:

Miller Harris Lawyers

Orders

The application of the father filed 16 May 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Peterson & Cochrane is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC1098 of 2007

MR COCHRANE

Applicant

And

MS PETERSON

Respondent

REASONS FOR JUDGMENT

Proceedings

On 4 March 2008 I delivered judgment on an interim application by the father seeking supervised time with the parties’ daughter (“the child”) who has since turned 8 years of age. I dismissed his application for reasons then given. He has renewed the application for interim orders in light of subsequent developments by an application filed 16 May. By that he seeks an order for supervised time each Saturday for up to four hours or such other time as can be organised at the local Contact Centre. The mother again asks that his application be dismissed.

Further background

These Reasons are to be read together with the Reasons delivered 4 March and therefore there is no need to repeat anything said there, including a summary of the background then available. What follows is a summary of subsequent developments:
(i)The affidavit of Mr McGinness, the solicitor acting for the father in the criminal charges, says the police brief of evidence was made available on 28 March. It includes an audiotape interview of the child by investigating police [no allegations were made by the child and she provided no information concerning the charges]. The father sought to vary his bail conditions to allow supervised contact with the child and consent was given on 3 April. The bail varied, consistent with undertakings given by the father, now provide: ‘(a) That he have no contact with any of the complainants or witnesses except for his daughter [the child]; and (b) He does not have any unsupervised contact with any female under the…

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 Peterson & Cochrane

Details

AGLC: Peterson & Cochrane [2008] FamCA 597
Case: [2008] FamCA 597
Decision Date: 1 August 2008

CaseChat Overview and Summary

In *Peterson & Cochrane*, heard before Moore J, the father sought to appeal a decision concerning parenting orders. The dispute centred on the father's application to vary existing orders, which was ultimately dismissed by the primary judge. The father then sought leave to appeal this dismissal to the Full Court of the Family Court of Australia.

The central legal issue before Moore J was whether the father had established sufficient grounds to warrant granting him leave to appeal the primary judge's decision. This required the court to consider the merits of the father's proposed appeal and determine if there was a reasonably arguable case that the primary judge had erred in law or fact.

Moore J's reasoning focused on the high threshold for granting leave to appeal in such circumstances. His Honour found that the father had failed to demonstrate any significant error on the part of the primary judge in the original parenting proceedings. Consequently, the application for leave to appeal was dismissed. The application of the father filed 16 May 2008 was dismissed.

Orders

Orders of the court

The application of the father filed 16 May 2008 is dismissed.

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.