Pickering and Pickering (No 3) - [2010] FamCA 980

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO. 3)

[2010] FamCA 980

FAMILY LAW – CHILDREN – interim orders – where the mother seeks that previous final consent orders be varied – where those orders provided that the child live with the father, spends time with the mother and the parties have equal shared parental responsibility – where the child has not been living with the father and this has been the subject of contravention applications – whether it is appropriate for the order to be varied – best interests – orders suspending the primary order that the child live with the father – held not appropriate to make orders for equal time of substantial and significant time

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA & 70NBA

Family Law Rules 2004 rr 1.12

Dobbs & Brayson [2007] FamCA 1261
Goode v Goode (2006) FLC 93-286
MRR & GR [2010] HCA 4
Re F Litigants In Person Guidelines (2001) FLC 93-072

APPLICANT:

Mr Pickering

RESPONDENT:

Ms Pickering

FILE NUMBER:

ADF

1919

2005

DATE DELIVERED:

28 October 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

28 October 2010

REPRESENTATION

FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Eid

SOLICITOR FOR THE RESPONDENT:

Nicholls Gervasi & Co

Orders

The matter of consideration of orders in relation to the child H born on … June 1995 is adjourned to Tuesday 23 November 2010 at 9.15 am before the Honourable Justice Dawe.
That any application by the mother seeking orders in relation to the child H be filed and served by 4.00 pm on Monday 8 November 2010 AND UPON NOTING specifically listing the Initiating Application if filed and served by 8 November 2010 before me on 23 November 2010 at 9.15 am.
Any Response and affidavit in support of the Response to be filed by the father is to be filed and served by 4.00 pm on Thursday 18 November 2010
During the period of the adjournment paragraphs 1 and 2 of the order of 22 October 2008 are suspended so far as it relates to the child H.
During the period of the adjournment the child H live with the mother.
During the period of the adjournment the mother do all things necessary to ensure that the child attend K School on all school days unless the mother obtains a Medical Certificate for any days or part of a day that the child is absent from school and send a copy of such Medical Certificate to the father by pre-paid post within twenty-four [24] hours of obtaining the same.
Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the child H born on the … June 1995 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to…

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 Pickering and Pickering (No 3)

Details

AGLC: Pickering and Pickering (No 3) [2010] FamCA 980
Case: [2010] FamCA 980
Decision Date: 28 October 2010

CaseChat Overview and Summary

The case of *Pickering and Pickering (No 3)* concerned an application before Dawe J in the Family Court of Australia. The dispute involved orders relating to a child, H, born in June 1995. The court was required to consider various applications and make interim orders regarding H's living arrangements, school attendance, and independent representation.

The central legal issues before the court were the interim living arrangements for H, ensuring his regular attendance at school, and the appointment of an Independent Children's Lawyer. The court also considered the necessity of a Family Consultant's report to assist in resolving the ongoing issues between the parties concerning H's best interests.

Dawe J made several orders to address these issues. Paragraphs 1 and 2 of a previous order of 22 October 2008 were suspended concerning H, and H was ordered to live with the mother during the adjournment. The mother was directed to ensure H's school attendance and to provide medical certificates for any absences to the father. Crucially, pursuant to section 68L of the *Family Law Act 1975*, H was to be independently represented, with arrangements to be made by the Legal Service Commission of South Australia, and consideration was given to the reappointment of the former Independent Children's Lawyer. Furthermore, pursuant to section 11F of the *Family Law Act 1975*, the parties and H were ordered to attend upon a Family Consultant for an appointment to assist in achieving a resolution, with a report to be provided to the court regarding H's best interests, living arrangements, relationships, and school attendance. The matter was adjourned for further consideration.

Orders

Orders of the court

The matter of consideration of orders in relation to the child H born on … June 1995 is adjourned to Tuesday 23 November 2010 at 9.15 am before the Honourable Justice Dawe.

That any application by the mother seeking orders in relation to the child H be filed and served by 4.00 pm on Monday 8 November 2010 AND UPON NOTING specifically listing the Initiating Application if filed and served by 8 November 2010 before me on 23 November 2010 at 9.15 am.

Any Response and affidavit in support of the Response to be filed by the father is to be filed and served by 4.00 pm on Thursday 18 November 2010

During the period of the adjournment paragraphs 1 and 2 of the order of 22 October 2008 are suspended so far as it relates to the child H.

During the period of the adjournment the child H live with the mother.

During the period of the adjournment the mother do all things necessary to ensure that the child attend K School on all school days unless the mother obtains a Medical Certificate for any days or part of a day that the child is absent from school and send a copy of such Medical Certificate to the father by pre-paid post within twenty-four [24] hours of obtaining the same.

Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the child H born on the … June 1995 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission copies of documents lodged since the discharge of the Independent Children’s Lawyer in October 2008 and the Court requests the Legal Services Commission to give consideration to the reappointment of Mr Kent who was formerly the Independent Children’s Lawyer in this matter.

Pursuant to Section 11F of the Family Law Act 1975 as amended the parties and the child H do attend upon a Family Consultant as the Adelaide Registry of this Court for such appointment(s) as the Family Consultant deems necessary and upon such date(s) as are advised by the Family Consultant in an endeavour to assist the parties in achieving a final resolution of the issues between them or at the very least an interim resolution pending the trial of these proceedings UPON NOTING that the Court informed the parties this day of the consequences of failure to comply with this Order (Section 11G).

Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a Family Consultant provide to the Court a report in respect to the child H born on … June 1995 directed to best interests, living arrangements and other orders to be made in relation to the child H and directed in particular to his relationship with the mother and father and the other children in both households and the relationship with the mother’s partner and also directed to H’s school attendance and H’s views in relation to the orders sought by the parties in these proceedings and that such report be released (if possible) to the parties and to the Independent Children’s Lawyer on or before the hearing on 23 November 2010, taking into account also that if a Family Consultant within the Registry is not available within this time that consideration be given to Ms SA preparing the s62G(2) report for the Court.

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.