Pickle and Walker - [2012] FMCAfam 284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PICKLE & WALKER

[2012] FMCAfam 284

FAMILY LAW – Interim parenting arrangements for child aged three years – child lives with maternal grandmother – mother has previously suffered depression – drug and personality issues – poor relationship between maternal grandmother and mother – time to be spent with mother – should it be supervised – assessment of risk – best interests.

Family Law Act 1975, s.60CC
Federal Magistrates Regulations 2000

W & W [2005] FamCA 892
Rice v Miller (1993) FLC 92-415
Davis v Davis (2007) 38 FamLR 671 at 697 [114]

Applicant:

MS PICKLE

Respondent:

MS WALKER

File Number:

ADC 2156 of 2009

Judgment of:

Brown FM

Hearing date:

26 March 2012

Date of Last Submission:

26 March 2012

Delivered at:

Adelaide

Delivered on:

30 March 2012

REPRESENTATION

Counsel for the Applicant:

Ms Lee

Solicitors for the Applicant:

Bartel & Hall

Counsel for the Respondent:

Ms Milen

Solicitors for the Respondent:

Jo-Anne N Milen & Associates

Counsel for the Independent:

Legal Services Commission of South Australia - [location omitted]

Solicitors for the Respondent:

Ms Tydeman

UNTIL FURTHER OR OTHER ORDER

The child [X] born [in] 2008 live with the maternal grandmother, Ms Walker.
The mother spend time with the child each Saturday commencing 31 March 2012 between 9.30 am until 4.30 pm or at such other times as may be agreed between the parties.
The time specified in order (2) hereof shall take place at the mother’s home and is not to be subject to any form of supervision either formal or informal.
To give effect to order (2) hereof the maternal grandmother or her nominee is to deliver the child to the mother’s home at the commencement of each such period and the mother is to return the child to the maternal grandmother’s home at the conclusion of each such period.
The parties are restrained and an injunction issues restraining each of them from abusing, denigrating or undermining the other in the presence of hearing of the child or permitting any other person to do so.
The parties are restrained and an injunction issues restraining each of them from discussing these proceedings in the presence of the child or permitting any other person to do so.
The matter be listed for trial on 26 and 27 July 2012 at 10.00 am NOTING two (2) days allowed.
The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 28 June 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 13 July 2012.
That on or before 13 July 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
That the applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
During the period of the adjournment it is directed that Mr S update…

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 Pickle and Walker

Details

AGLC: Pickle and Walker [2012] FMCAfam 284
Case: [2012] FMCAfam 284
Decision Date: 30 March 2012

CaseChat Overview and Summary

The case before the court was an interim application concerning the care arrangements for a child named [X], born in 2008. [X] had been living predominantly with his maternal grandmother, Ms Walker, since he was a baby. The applicant, Ms Pickle, [X]'s mother, sought orders for [X] to live with her and for Ms Walker to have time with him at times to be agreed between the parties or as specified by the Court. Ms Walker opposed this application and sought to have Ms Pickle's time with [X] supervised. The legal issue was whether it was in [X]'s best interests to spend unsupervised time with his mother. The court found that the best outcome for [X] was likely to be one in which he was able to extend and hopefully normalise his relationship with his mother rather than to have that relationship further confined. The court ordered that [X] would spend time with his mother each Saturday commencing 31 March 2012 between 9.30 am until 4.30 pm or at such other times as may be agreed between the parties. The time specified in order (2) hereof shall take place at the mother’s home and is not to be subject to any form of supervision either formal or informal. To give effect to order (2) hereof the maternal grandmother or her nominee is to deliver the child to the mother’s home at the commencement of each such period and the mother is to return the child to the maternal grandmother’s home at the conclusion of each such period. The parties are restrained and an injunction issues restraining each of them from abusing, denigrating or undermining the other in the presence of hearing of the child or permitting any other person to do so. The parties are restrained and an injunction issues restraining each of them from discussing these proceedings in the presence of the child or permitting any other person to do so. The matter be listed for trial on 26 and 27 July 2012 at 10.00 am NOTING two (2) days allowed. The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 28 June 2012. The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 13 July 2012. That on or before 13 July 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof. That the applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000. During the period of the adjournment it is directed that Mr S update the family report herein pursuant to Section 62G of Family Law Act 1975.

Orders