S & S - [2007] FMCAfam 898

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2007] FMCAfam 898

FAMILY LAW – Parenting orders – father with epilepsy – risk of harm to children.

Family Law Act 1975 (Cth), ss.60B, 60CC(2) (3), (4) & (4A), 65DAA(1)(a) & (b), (3) & (5), 69ZT(2) & (4) and 69ZV(1), (2) & (5)
Federal Magistrates Act 1999 (Cth) ss.3 and 42
Federal Magistrates Court Rules2001 (Cth), rr. 1.03 and 16.01

B & B [2007] FMCAfam 82
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Hungerford & Tank [2007] FamCA 637

Applicant:

B D S

Respondent:

N A S

File Number:

NCC 2506 of 2007

Judgment of:

Lucev FM

Hearing date:

27 September 2007

Date of Last Submission:

27 September 2007

Delivered at:

Darwin (by telephone-link to New South Wales )

Delivered on:

2 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr Hamilton

Solicitors for the Applicant:

Paul Stubbs Law Office

Counsel for the Respondent:

Ms McKinnon

Solicitors for the Respondent:

Crane Butcher McKinnon

ORDERS THAT UNTIL FURTHER ORDER

The Applicant spend time with the Children from 9.00 am to 6.00 pm each Sunday.
The Applicant spend time with the Children each Wednesday from 5.00 pm to 7.00 pm.
At least two (2) members of the Applicant’s family are to be present with the Applicant and the Children during the Applicant’s time spent with the Children, provided that they are family members able to deal with the Applicant’s medical issues.
The Applicant spend time with the Children at any other time agreed between the parties, such time spent to be in the presence of:
(a)the Respondent Mother; or
(b)at least two (2) members of the Applicant’s family.
The Respondent Mother is to deliver and pickup the Children from:
(a)the Applicant’s residence; or
(b)such other place as may from time to time be agreed by the Applicant and Respondent,
at the beginning and end of each period of time spent with the Applicant.
The Applicant have telephone communication with the Children for a half hour in total between 6.30 pm and 7.30 pm each Monday and Friday on a landline number to be provided in writing by the Respondent’s solicitors to the Applicant’s solicitors, with the Respondent to ensure the Children are available to take the call which is to be made by the Applicant.
The children [H] born 2000 and [T] born 2007 are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
(a)Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
(b)Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
(c)The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.
The parties have leave to inspect the documents produced under…

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.

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Details

AGLC: S & S [2007] FMCAfam 898
Case: [2007] FMCAfam 898
Decision Date: 2 November 2007

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, B D S, the father, sought interim parenting orders in relation to his two children, [H] and [T]. The mother, N A S, opposed the application and sought that an Independent Children's Lawyer be appointed, the time the children spend with the father be reviewed, and the proceedings be transferred to New South Wales. The central issue was whether the children should spend time with the father, given his epilepsy and whether that posed a risk of harm to the children. The court examined various factors, including the benefit to the children of having a meaningful relationship with both parents, the risk of harm to the children, and the views of the children. The court found that there was no specific evidence of violence towards the children post November 2004, and that the children were likely to have an appropriate relationship with their father, within the reasonable bounds imposed by his epilepsy. The court ordered that the children spend time with the father, subject to the availability of appropriate supervision. The father was to be supervised by two family members with the requisite awareness and knowledge of how to manage his epilepsy. The mother was to be responsible for transport to and from changeover. The father was allowed to have telephone communication with the children for a half hour twice a week, with the mother to ensure that the children were available to take the father's call. The court considered that it was appropriate, at least for interim purposes, for the children to spend a day a week with the father on a non-school day and an evening a week on a school day. The matter was adjourned for further directions at New South Wales on 8 November 2007.

Orders