SANDS & MOERS (No.2) - [2013] FCCA 1371

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDS & MOERS (No.2)

[2013] FCCA 1371

Catchwords:
FAMILY LAW – Child aged eleven years – arrangements for interim care – parties have toxic relationship – child has lived predominantly with father and spent alternate weekends and holidays with mother since consent order made in June 2011 – mother withheld child following alleged disclosures of physical abuse by father made by the child – allegations made in electronically recorded record of interview with police – child has allegedly subsequently recanted allegations in further electronically recorded interview with police – child alleged to have indicated to police and father that mother forced him to fabricate claims of abuse against father – child ordered to attend on family consultant to take part in child inclusive family dispute resolution conference – child has indicated to family consultant his desire not to spend time with his mother until he is eighteen – weight to be given to child’s views at the interim stage – protective concerns – assessment of risk – meaningful relationship – best interests.

Legislation:
Family Law Act 1975, ss.4(1); 60B; 60CC; 61DA; 65DAA

Cases cited:

Moers & Sands [2011] FMCAfam 47
Sands & Moers [2013] FMCAfam 28
Moers & Sands [2009] FMCAfam 1354
Moers & Sands [2011] FMCAfam 47
Moers & Sands [2007] FMCAfam 1067
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
N & S and the Separate Representative (1996) FLC 92-655
M & M (1988) FLC 91-979
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
Goode & Goode (2006) FLC 93-286
H v W (1995) FLC 92-598

Applicant:

MS SANDS

Respondent:

MR MOERS

File Number:

ADC 2864 of 2007

Judgment of:

Judge Brown

Hearing date:

23 August 2013

Date of Last Submission:

23 August 2013

Delivered at:

Adelaide

Delivered on:

19 September 2013

REPRESENTATION

Counsel for the Applicant:

Ms Basheer

Solicitors for the Respondent:

Clelands

Counsel for the Respondent:

In person

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission

Counsel for the Independent Children’s Lawyer:

Ms Lindsay

ORDERS

Prior to 1 December 2013 the father and the mother enrol at the [C] Children's Contact Centre to assess their respective suitability to take part in the supervised contact process.
In the event the parties are assessed as suitable to take part in the supervised contact program the mother spend time with the child of the relationship [X] born 16 January 2002 (herein after referred to as “the child”) as follows:
(a)On six occasions fortnightly occasions, following 1 December 2013, at the [C] Children's Contact Centre, at such times as may be allocated by the Director of the Centre or her nominee and subject to the following conditions:
(i)The time be supervised by the Director of the Centre or her nominee;
(ii)There be no more than one visit per fortnight not exceeding two hours in duration;
(iii)The visits take place at the expense of the mother;
(iv)After the conclusion of six…

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 SANDS & MOERS (No.2)

Details

AGLC: SANDS & MOERS (No.2) [2013] FCCA 1371
Case: [2013] FCCA 1371
Decision Date: 19 September 2013

CaseChat Overview and Summary

This matter concerned an application by the father and mother of a child, born 16 January 2002, for orders regarding supervised contact. The proceedings were before Judge Brown.

The court was required to determine the terms upon which the mother would be permitted to spend time with the child, following a period of suspension of previous contact orders. This involved assessing the suitability of both parents for supervised contact and establishing a framework for such contact, including reporting and expense.

Judge Brown ordered that prior to 1 December 2013, both parents were to enrol at a specified Children's Contact Centre to assess their suitability for supervised contact. If deemed suitable, the mother was to have six supervised contact visits with the child at the centre, fortnightly, commencing after 1 December 2013. These visits were to be at the mother's expense, supervised by the Centre's Director or nominee, and not exceed two hours each. A report on the progress of these visits, including the demeanour and conduct of the child and mother, was to be prepared at the mother's expense. All previous orders allowing the mother to spend time with the child were suspended until further order, and the proceedings were adjourned.

Orders

Orders of the court

Prior to 1 December 2013 the father and the mother enrol at the [C] Children's Contact Centre to assess their respective suitability to take part in the supervised contact process.

In the event the parties are assessed as suitable to take part in the supervised contact program the mother spend time with the child of the relationship [X] born 16 January 2002 (herein after referred to as “the child”) as follows:

(a) On six occasions fortnightly occasions, following 1 December 2013, at the [C] Children's Contact Centre, at such times as may be allocated by the Director of the Centre or her nominee and subject to the following conditions:

(i) The time be supervised by the Director of the Centre or her nominee;

(ii) There be no more than one visit per fortnight not exceeding two hours in duration;

(iii) The visits take place at the expense of the mother;

(iv) After the conclusion of six such visits a report be prepared by the person or persons undertaking the supervision as to the progress of the visits and the demeanour and conduct of the child and mother;

(v) The report envisaged by order 2(a)(iv) hereof be prepared at the expense of the mother.

Until further or other order and subject to the provisions of order (2) hereof all previous orders pursuant to which the mother spends time with the child are suspended.

The proceedings relating to the child be adjourned until 18 March 2014 at 9:30am.

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.