Peterson & Davis - [2017] FCCA 1332

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETERSON & DAVIS & ORS

[2017] FCCA 1332

Catchwords:
FAMILY LAW – Interim Parenting – Allegations of physical abuse including against the children – Whether unacceptable risk of harm to children exists – Determination of best interests considerations.

FAMILY LAW – Practice and Procedure – Application in a Case – Costs.

FAMILY LAW – Practice and Procedure - Transfer to Family Court of Australia.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 612DA, 65DAA, 68B, 117

Federal Circuit Court Act 1999, s.39
Federal Circuit Court Rules 2001, r.8.02, 21.02

Cases cited:

Banks & Banks (2015) FLC 93-637
Braithwaite & Braithwaite [2007] FamCA 468
Cochrane & Cochrane [2012] FMCAfam 984
Collins & Collins (1985) FLC 91-603
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123
Keats & Keats [2016] FamCAFC 156
Latoudis v Casey (1990) 170 CLR 534
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Penfold & Penfold (1980) 144 CLR 311
Re David Costs (1998) FLC 92 - 809
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Wrensted & Eades [2016] FAMCAFC 46

Applicant:

MS PETERSON

First Respondent:

MR DAVIS

Second Respondent:

MR CAREY

Third Respondent:

MR M DAVIS

Fourth Respondent:

MS DAVIS

File Number:

PAC 1208 of 2016

Judgment of:

Judge Obradovic

Hearing date:

31 March 2017

Date of Last Submission:

31 March 2017

Delivered at:

Parramatta

Delivered on:

23 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr Morley

Solicitors for the Applicant:

Reimer Winter Williamson The Lawyers

Appearing for the First Respondent:

Ms D'Addona

Solicitors for the First Respondent:	Rafton Family Lawyers
Appearing for the Second Respondent:	Mr McLeod
Solicitors for the Second Respondent:	Mercantile Legal Pty Ltd

Appearing for the Third and

Fourth Respondents:

Mr Allan

Solicitors for the Third and

Fourth Respondents:

Kekatos Lawyers Legal Services

Counsel for the Independent Children's Lawyer:	Ms Rowley
Solicitors for the Independent Children's Lawyer:	Rowley & Associates

PENDING FURTHER ORDER

That the parenting Orders made in the Federal Magistrates Court of Australia at Parramatta on 24 June 2011 be suspended (except for order 1 of the Consent Orders marked “A” dealing with parental responsibility.)
That the Respondent father spend time with the children on one occasion each month for a period of two hours on each occasion, supervised by either a Children’s Contact Centre or a commercial contact supervision agency, at the expense of the father.
That the father is restrained from consuming alcohol for a period of twelve hours prior to spending time with the children and at all while he is spending time with the children.
That within 7 days the father enrol in courses or engage as follows:
(a)In relation to managing anger;
(b)In relation to parenting after separation; and
(c)With counselling for drug and alcohol abuse.
Pursuant to section 68B of the Family Law Act1975 the father is restrained by injunction from attending at any school or…

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 & Davis

Details

AGLC: Peterson and Davis and Ors [2017] FCCA 1332
Case: [2017] FCCA 1332
Decision Date: 23 June 2017

CaseChat Overview and Summary

The matter of *Peterson & Davis* concerned an application for interim parenting orders. The dispute arose from allegations of physical abuse, including against the children involved in the proceedings. The Honourable Justice Obradovic of the Family Court of Australia was required to determine whether an unacceptable risk of harm to the children existed.

The primary legal issue before the court was the assessment of the best interests of the children in the context of allegations of physical abuse. This involved considering the various factors outlined in the *Family Law Act 1975* (Cth) relevant to determining what is in a child's best interests, particularly where there are concerns about safety and well-being. The court also considered applications relating to costs and the potential transfer of the proceedings.

In reaching its decision, the court applied the principles governing interim parenting orders, which require a careful balancing of the need to protect children from harm against the importance of maintaining their relationship with both parents. The court's reasoning focused on the evidence presented regarding the alleged abuse and its potential impact on the children. The court considered the threshold for establishing an unacceptable risk of harm and how this intersected with the overarching consideration of the children's best interests. The court ultimately made orders regarding the interim parenting arrangements and addressed the issue of costs.

Orders