Savage and Savage - [2016] FamCA 20

FAMILY COURT OF AUSTRALIA

SAVAGE & SAVAGE

[2016] FamCA 20

FAMILY LAW – CHILDREN – Interim parenting – Best interests of the child – With whom the children spend time – Application for the father for extended unsupervised time – Issue of unacceptable risk of harm – Allegations of family violence – Father’s mental health – Insufficient appropriate evidence from a qualified expert regarding the father’s mental health and parenting capacity – Father’s supervised time with the children extended.

Family Law Act 1975 (Cth)ss 60CA, 60CC, 61C, 61DA. 65DAC.

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Savage

RESPONDENT:

Ms Savage

FILE NUMBER:

PAC

4122

2015

DATE DELIVERED:

22 January 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Battley

SOLICITOR FOR THE RESPONDENT:

Murray J Nott Solicitor

Orders

Pending further order

B born … 2011 and C born … 2013 (the children) shall live with the Mother.
The children shall spend time with the Father each week for a period of four hours as agreed between the parties and failing agreement each Saturday, such time to be supervised by Phoenix Rising or such other agency or person as agreed between the parties.
The children’s time with the Father is to commence as soon as practicable and each of the parents is to do all things required of them to facilitate the supervision by Phoenix Rising or any other service as agreed by the parties.
The parties shall equally meet the costs of supervision and all incidental costs including the costs of a report after each occasion of time with the Father.
The parties shall instruct Phoenix Rising or such other agency to provide the report referred to in Order 4 to both parties.
The children shall spend time with their father at any other time as agreed between the parties.
The children shall have telephone communication with their Father every Monday, Wednesday and Friday between 6.30am and 7am. For the purpose of this order, the Mother shall encourage the children to participate and shall initiate the call using the Father’s mobile phone number. The mother is restrained from requiring the Father to comply with any other condition, including that such telephone calls be recorded.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Savage & Savage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4122 of 2015

Mr Savage

Applicant

And

Ms Savage

Respondent

REASONS FOR JUDGMENT

Introduction

In parenting and property proceedings, 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 Savage and Savage

Details

AGLC: Savage and Savage [2016] FamCA 20
Case: [2016] FamCA 20
Decision Date: 22 January 2016

CaseChat Overview and Summary

In the matter of *Savage and Savage*, heard by Hannam J, the dispute concerned parenting orders for two children, B (born 2011) and C (born 2013). The court was required to determine the living arrangements for the children and the extent of their contact with their father.

The primary legal issue before the court was to establish orders that would best serve the interests of the children, specifically regarding where they would live and how they would spend time with each parent. This involved considering the practicalities of supervised contact and communication arrangements.

Hannam J made orders that the children shall live with the Mother. The children are to spend four hours with the Father each week, either as agreed by the parties or, failing agreement, each Saturday. This contact is to be supervised by Phoenix Rising or another agreed agency or person, and both parents are to facilitate this supervision. The costs of supervision and associated reports are to be shared equally. The children are also to have telephone communication with their Father three times a week, with the Mother to encourage their participation and initiate the calls. The Mother is restrained from imposing further conditions on these calls, such as recording them. These orders are pending further order of the court.

Orders

Orders of the court

Pending further order

B born … 2011 and C born … 2013 (the children) shall live with the Mother.

The children shall spend time with the Father each week for a period of four hours as agreed between the parties and failing agreement each Saturday, such time to be supervised by Phoenix Rising or such other agency or person as agreed between the parties.

The children’s time with the Father is to commence as soon as practicable and each of the parents is to do all things required of them to facilitate the supervision by Phoenix Rising or any other service as agreed by the parties.

The parties shall equally meet the costs of supervision and all incidental costs including the costs of a report after each occasion of time with the Father.

The parties shall instruct Phoenix Rising or such other agency to provide the report referred to in Order 4 to both parties.

The children shall spend time with their father at any other time as agreed between the parties.

The children shall have telephone communication with their Father every Monday, Wednesday and Friday between 6.30am and 7am. For the purpose of this order, the Mother shall encourage the children to participate and shall initiate the call using the Father’s mobile phone number. The mother is restrained from requiring the Father to comply with any other condition, including that such telephone calls be recorded.

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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