Selmy and Branfield - [2017] FCCA 918

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELMY & BRANFIELD

[2017] FCCA 918

Catchwords:
FAMILY LAW – Interim arrangements for parenting of child aged 6 – allegations of abuse – allegation mother has intentionally bruised child and the facilitated child to make disclosure of physical abuse by father – mother alleged father’s partner has bruised child – parties have poor and mistrustful relationship – assessment of risk – is risk unacceptable – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4(1); 60CA; 60CC

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655

W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant:

MR SELMY

Respondent:

MS BRANFIELD

File Number:

ADC 1934 of 2012

Judgment of:

Judge Brown

Hearing date:

31 March 2017

Date of Last Submission:

31 March 2017

Delivered at:

Adelaide

Delivered on:

31 March 2017

REPRESENTATION

Counsel for the Applicant:

Ms Goff

Solicitors for the Applicant:

R J Cole & Partners

Counsel for the Respondent:

Ms James

Solicitors for the Respondent:

Franklin Legal

ORDERS

This matter be listed for final hearing before Judge Brown on 5, 6 & 7 February 2018 at 10.00am NOTING three (3) days hearing time has been allocated and will not be exceeded without leave of the Court.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed as soon as is reasonably practicable to represent the interests of the child [X] born (omitted) 2009 born and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The Application in a case filed by the father on 22 February 2017 be dismissed.
The current care arrangements for the child be resumed with the father to commence his time with the child from Monday 10 April 2017.
Further consideration of the matter is adjourned to 18 August 2017 at 9.30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1934 of 2012

MR SELMY

Applicant

And

MS BRANFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

The suggestion that a parent would deliberately harm a child and then facilitate the child concerned to attribute the injury so inflicted…

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 Selmy and Branfield

Details

AGLC: Selmy and Branfield [2017] FCCA 918
Case: [2017] FCCA 918
Decision Date: 31 March 2017

CaseChat Overview and Summary

In the matter of *Selmy and Branfield*, heard by Judge Brown, the dispute concerned the care arrangements for a child. The father had filed an application in a case on 22 February 2017, which was subsequently dismissed by the Court.

The primary legal issue before the Court was the appropriate care arrangements for the child. The Court also considered the necessity and process for appointing an Independent Children’s Lawyer to represent the child's interests.

Judge Brown ordered that an Independent Children’s Lawyer be appointed as soon as practicable to represent the child. The parties' solicitors were directed to forward relevant documents to the Legal Services Commission of South Australia within seven days to facilitate this appointment, with the Independent Children’s Lawyer to endeavour to make submissions by the adjourned date. The father's application was dismissed, and the existing care arrangements were to resume, with the father commencing his time with the child from 10 April 2017. The matter was adjourned for further directions on 18 August 2017.

Orders

Orders of the court

This matter be listed for final hearing before Judge Brown on 5, 6 & 7 February 2018 at 10.00am NOTING three (3) days hearing time has been allocated and will not be exceeded without leave of the Court.

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed as soon as is reasonably practicable to represent the interests of the child [X] born (omitted) 2009 born and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

The Application in a case filed by the father on 22 February 2017 be dismissed.

The current care arrangements for the child be resumed with the father to commence his time with the child from Monday 10 April 2017.

Further consideration of the matter is adjourned to 18 August 2017 at 9.30am for directions.

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.