SCANLON & ALVARDA - [2019] FCCA 1902

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCANLON & ALVARDA

[2019] FCCA 1902

Catchwords:

FAMILY LAW – Parenting proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39

Federal Circuit Court Rules 2001, r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Re W: Publication Application (1997) 137 FLR 205

Applicant:

MR SCANLON

Respondent:

MS ALVARDA

File Number:

PAC 3094 of 2018

Judgment of:

Judge Newbrun

Hearing date:

13 June 2019

Date of Last Submission:

13 June 2019

Delivered at:

Parramatta

Delivered on:

12 July 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Hazim

Solicitors for the Respondent:

Mr Siu

Solicitors for the Independent Children's Lawyer:

Mr Samuel

ORDERS

By consent and pursuant to Division 13.2 of the Federal Circuit Court Rules, orders, declarations and notations are made in accordance with the Consent Orders marked Exhibit A and attached hereto.
Direct the solicitor for the Independent Children’s Lawyer to prepare a typescript of Exhibit A within 14 days.
These proceedings are forthwith transferred to the Parramatta Registry of the Family Court of Australia.
The proceedings are listed before the Registrar for mention on 26 June 2019 at 9.30am.

NOTATION:

A.The Family Court of Australia is respectfully requested to consider whether or not it is appropriate for these proceedings to be placed in the Magellan list.

IT IS NOTED that publication of this judgment under the pseudonym Scanlon & Alvarda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3094 of 2018

MR SCANLON

Applicant

And

MS ALVARDA

Respondent

REASONS FOR JUDGMENT

Introduction

The within Reasons for Judgment relate to this Court’s Order of 13 June 2019 that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.
The subject children are 6 children, with ages ranging from 3 years to 15 years. At least one child has developmental delay and the Independent Children’s Lawyer (“ICL”) has stated will likely require lifelong care from one or both of her parents.
An ICL was appointed in January 2019. At the mention on 13 June 2019, the ICL expressed concerns in relation to both parents.
The children are currently living with the father.
The Court’s interim consent parenting orders of 13 June 2019 provided, inter alia, that the children live with the father; that no orders be made in relation to the three eldest children spending time with the mother; that the three youngest children only spend daytime time with the mother; that the Department of Family and Community Services be requested to intervene in the proceedings.
The mother is facing criminal charges in respect to the child [X], aged 12 years in a Local Court, and the outcome of those proceedings is not yet known. An alleged assault by the mother on this child is said to have occurred on … 2019. The alleged assault upon this child by the mother is alleged to be particularly serious.…

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 SCANLON & ALVARDA

Details

AGLC: Scanlon and Alvarda [2019] FCCA 1902
Case: [2019] FCCA 1902
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the matter of *Scanlon & Alvarda*, Judge Newbrun of the Federal Circuit Court of Australia made orders concerning parenting proceedings. The dispute involved parenting arrangements, and the proceedings had been transferred to the Federal Circuit Court.

The primary legal issue before the court was the appropriate disposition of the parenting proceedings, including the transfer of the matter to another registry. The court was also required to consider the preparation of consent orders and the potential listing of the proceedings in a specialised list.

By consent of the parties and pursuant to Division 13.2 of the Federal Circuit Court Rules, the court made orders and declarations in accordance with a marked Exhibit A. The court directed the solicitor for the Independent Children’s Lawyer to prepare a typescript of these consent orders within 14 days. Furthermore, the proceedings were forthwith transferred to the Parramatta Registry of the Family Court of Australia and listed for mention before the Registrar on 26 June 2019. The Family Court of Australia was respectfully requested to consider whether the proceedings should be placed in the Magellan list.

Orders

Orders of the court

By consent and pursuant to Division 13.2 of the Federal Circuit Court Rules, orders, declarations and notations are made in accordance with the Consent Orders marked Exhibit A and attached hereto.

Direct the solicitor for the Independent Children’s Lawyer to prepare a typescript of Exhibit A within 14 days.

These proceedings are forthwith transferred to the Parramatta Registry of the Family Court of Australia.

The proceedings are listed before the Registrar for mention on 26 June 2019 at 9.30am.

NOTATION:

A. The Family Court of Australia is respectfully requested to consider whether or not it is appropriate for these proceedings to be placed in the Magellan list.

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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