RAHMAN & BAILARD (No.2) - [2019] FCCA 3737

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN & BAILARD (No.2)

[2019] FCCA 3737

Catchwords:
FAMILY LAW – Interim parenting arrangements – where the child passed from the mother’s care to the father’s care following the mother’s involuntary admission and detention to a psychiatric unit – due process – where the mother does not desire to receive assistance from the Legal Aid Commission or solicitors provided by that Commission – risk to child – what harmful outcome is potentially present – where the mother raises allegations of family violence – balancing of competing allegations – what is known – safety of the child – treating the allegations as capable of successful prosecution to a point of finding – capacity of mother to care for the child – Orders made for the child to spend supervised time with the mother pending further Order – Orders made for the appointment of an Independent Children’s Lawyer – short adjournment of proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.68B, 67ZBB, 60CA, 60B, 61DA, 60CC
Mental Health Act 2007 (NSW), s.22

Cases cited:

Goode& Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC 100
Johns & Jasapas [2016] FamCA 471
Harridge & Harridge [2010] FamCA 445
Green & Davis [2012] FamCAFC 20

Applicant:

MR RAHMAN

Respondent:

MS BAILARD

File Number:

PAC 3609 of 2019

Judgment of:

Judge Harman

Hearing date:

2 December 2019

Date of Last Submission:

2 December 2019

Delivered at:

Parramatta

Delivered on:

2 December 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Hill

The Respondent appeared in person

ORDERS

Leave is granted to the legal representatives of the parties, the Independent Children’s Lawyer (if applicable) and any self-represented party; to inspect material produced pursuant to s.69ZW by the Department of Communities and Justice on 2 December 2019.

THE COURT FURTHER ORDERS THAT:

I dismiss the Applications in a Case filed 30 October 2019 and 7 November 2019.
Pending further order, Ms Bailard shall spend time with [X] born … 2016 at such times, with such frequency and for such periods as can be accommodated by the Suburb A Children’s Contact Service.
The parties shall, within 48 hours, contact that service to arrange to attend the first available and offered intake appointment for assessment of suitability of service and upon assessment of suitability each party shall:
(a)Do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable that service to be engaged to provide supervised visits between Ms Bailard and [X];
(b)Each parent shall file such directions from that service as are provided; and
(c)Each parent shall equally meet all fees charged by the service (with the intention that each party will contribute one half of the cost of each visit).
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
Request that the Legal Aid Commission facilitate the appointment of an Independent Children’s Lawyer with such expedition as…

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 RAHMAN & BAILARD (No.2)

Details

AGLC: Rahman and Bailard (No.2) [2019] FCCA 3737
Case: [2019] FCCA 3737
Decision Date: 2 December 2019

CaseChat Overview and Summary

This matter concerned interim parenting arrangements between Ms Bailard (the mother) and Mr Rahman (the father) concerning their child, [X]. The dispute arose following the mother's involuntary admission to a psychiatric unit, after which the child transitioned from her care to the father's. The mother did not wish to engage with Legal Aid or its solicitors.

The court was required to determine the safety of the child, the potential harmful outcomes that might be present, and the capacity of the mother to care for the child, particularly in light of allegations of family violence raised by the mother and the father's concerns. The court also considered the due process rights of the mother.

In its reasoning, the court acknowledged the competing allegations and the need to treat them as capable of successful prosecution to a point of finding. The court balanced the known facts, including the child's safety and the mother's recent psychiatric admission, with the mother's allegations. The court ordered that pending further order, the child would spend supervised time with the mother at a children's contact service. An Independent Children's Lawyer was appointed to represent the child's interests, and a Family Consultant was requested to prepare a report for the court. The matter was adjourned for further mention and directions.

Orders

Orders of the court

Leave is granted to the legal representatives of the parties, the Independent Children’s Lawyer (if applicable) and any self-represented party; to inspect material produced pursuant to s.69ZW by the Department of Communities and Justice on 2 December 2019.

THE COURT FURTHER ORDERS THAT:

I dismiss the Applications in a Case filed 30 October 2019 and 7 November 2019.

Pending further order, Ms Bailard shall spend time with [X] born … 2016 at such times, with such frequency and for such periods as can be accommodated by the Suburb A Children’s Contact Service.

The parties shall, within 48 hours, contact that service to arrange to attend the first available and offered intake appointment for assessment of suitability of service and upon assessment of suitability each party shall:

(a) Do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable that service to be engaged to provide supervised visits between Ms Bailard and [X];

(b) Each parent shall file such directions from that service as are provided; and

(c) Each parent shall equally meet all fees charged by the service (with the intention that each party will contribute one half of the cost of each visit).

Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

Request that the Legal Aid Commission facilitate the appointment of an Independent Children’s Lawyer with such expedition as possible and with a view to the matter being addressed as to any extant interim or interlocutory issues on 6 February 2020.

The matter is adjourned for further mention and directions to 9:30am 6 February 2020.

Request that the Suburb A Children’s Contact Centre give such expedition to the facilitation of time between [X] and his mother as can occur, noting that [X] is of an age where mid-week time is available as well as weekend time and, noting further, that [X] has until Mid-October 2019 lived predominantly with his mother and has now passed to live predominantly with his father.

Pursuant to s.62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit A.

EXHIBIT A

APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER

Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child/ren the subject of these proceedings,

The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.

Each of the parties shall, within seven (7) days of any request by the Independent Children’s Lawyer:

(a) Complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.

(b) Provide to the Independent Children’s lawyer copies of all any documents filed by them in these proceedings together with:

(i) Any medical reports they hold relating to the child/ren;

(ii) Any psychological or school counsellor or pre-school intervention reports they hold relating to the child/ren;

(iii) Any school reports they hold for the child/ren;

(iv) Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.

Each of the parties shall present the child/ren to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child/ren.

Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.

Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.

The appointment of the Independent Children’s Lawyer is made on the following bases:

(a) There is manifest continuing hostility between the parties to the proceedings;

(b) There are allegations of significant mental illness or personality disorder in relation to either party or a child, or to other persons having significant contact with the children the symptomology of which condition is alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect the child/ren;

(d) The child/ren are suggested to be estranged from one or both parents or it is proposed that there be no communication;

(e) There are allegations of Family Violence and/or abuse suggested to impact upon the child/ren’s best interests.

(f) The child is of aboriginal descent and attention to cultural considerations is necessary.

(g) One or both parties are or will be self-represented litigants and whilst section 102NA of the Family Law Act 1975 may apply for a Final Hearing it will not assist in the conduct of the matter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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