Radev & Radev - [2019] FCCA 3750

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADEV & RADEV & ORS

[2019] FCCA 3750

Catchwords:
FAMILY LAW – Interim parenting – where Child has lived with Maternal Grandmother most of his life – whether in his best interests to be returned to his mother’s care – what weight to place on untested expert evidence.

Legislation:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ch.16A
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant:

MS J RADEV

First Respondent:

MS A RADEV

Second Respondent:

MR BARWEGEN

Third Respondent:

MR RADEV

File Number:

WOC 982 of 2019

Judgment of:

Judge Altobelli

Hearing date:

6 December 2019

Date of Last Submission:

6 December 2019

Delivered at:

Wollongong

Delivered on:

20 December 2019

REPRESENTATION

Solicitors for the Applicant:

Bowral Legal

Counsel for the First Respondent:

Ms Breeze

Solicitors for the Second Respondent:

Forshaw Lawyers

The Applicant Solicitor appeared by consent for the Third Respondent.

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Nowra Family Law

INTERIM ORDERS

The Child [X] born on … 2016 (“the Child”), forthwith live with the Mother, with the Maternal Grandmother to do all things necessary to return him to the Mother by 6:00pm today.
The Child spend time with the Father as agreed between the Mother and the Father.
For a period of 3 months, the Maternal Grandmother spend no time with the Child.
Subject to Order 3 above, the Maternal Grandmother, Ms A Radev, spend time with [X] under supervision at CatholicCare in Town B on days and times as agreed or failing agreement at the dates and times nominated by the Centre, being no less than one occasion per month for two hours and to facilitate such time:
(a)Each party must:
(i)Contact Catholic Care in Town B within 14 days to arrange an appointment for assessment for suitability;
(ii)Attend the assessment;
(iii)Comply with any appointment made by Catholic Care;
(iv)Comply with all reasonable rules of Catholic Care; and
(v)Comply with all reasonable directions or requests of the staff of Catholic Care.
The Mother and [X] continue to reside at the home of the Maternal Grandfather until further order.
The Mother attend on her general practitioner and obtain a mental health care plan and referral for further treatment from Ms C, psychologist within 14 days.
The Father continue to attend counselling with Ms D until such time as it is no longer deemed necessary by Ms D.
The Mother self-refer to Families NSW or some other similar service in her area for ongoing support of the family during the time of [X]’s change of residence.
The parties attend Litigation Intervention Conference as arranged by Legal Aid NSW.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in the event that there is non-compliance with these Orders and a recovery order is sought to enforce these Orders.
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 Radev & Radev

Details

AGLC: Radev and Radev and Ors [2019] FCCA 3750
Case: [2019] FCCA 3750
Decision Date: 20 December 2019

CaseChat Overview and Summary

In *Radev & Radev*, Altobelli J of the Federal Circuit and Family Court of Australia considered an application for interim parenting orders concerning a child who had resided with his maternal grandmother for the majority of his life. The central dispute revolved around whether it was in the child's best interests to be returned to his mother's care at the interim stage.

The court was required to determine the weight to be given to untested expert evidence presented in the proceedings, and to assess the child's best interests in the context of interim parenting arrangements. This involved considering the existing living arrangements and the potential impact of any change on the child.

Altobelli J reasoned that while expert evidence is valuable, its weight is diminished when it has not been tested through cross-examination. The court emphasised that the paramount consideration in all parenting matters is the best interests of the child. Applying this principle, Altobelli J made interim orders that the child remain in the care of his maternal grandmother, pending further assessment and determination of the final parenting orders.

Orders