Sheldon and Abraham and Ors - [2013] FCCA 48

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHELDON & ABRAHAM & ORS

[2013] FCCA 48

Catchwords:
FAMILY LAW – Interim – mother deceased – father facing unrelated criminal proceedings – three year old child living with paternal grandparents – maternal grandmother seeking parenting orders – supervision of child’s time with maternal grandmother.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65C, 65D, 65DAA

Goode & Goode(2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346
McKenzie & Edwards& Anor [2006] FamCA 1314

Applicant:

MS SHELDON

First Respondent:

MR ABRAHAM

Second Respondent:

MS ABRAHAM

Third Respondent:

MR Y ABRAHAM

File Number:

SYC 7690 of 2010

Judgment of:

Judge Monahan

Hearing date:

15 March 2013

Date of Last Submission:

15 March 2013

Delivered at:

Sydney

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Not Applicable

Solicitors for the Applicant:

David H Cohen & Co

Counsel for the First Respondent:

Not Applicable

Solicitors for the First Respondent:

James Papas Solicitors

Counsel for the Second and Third Respondents:

Not Applicable

Solicitors for the Second and Third Respondents:

Phillip A. Wilkins & Associates

Independent Children’s Lawyer:

Peter Baker Solicitors

ORDERS

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The Orders made on 15 March 2013 continue in full force and effect with the exception of paragraph 4 and 5 therein which are discharged.
The child X, born on (omitted) 2010, (“the child”) spend time with MS SHELDON (“the Applicant Maternal Grandmother”) as agreed or, failing agreement, as follows:
(a)for two (2) hours at times to be agreed or, failing agreement, from 10:00am until 12noon at the (omitted) Play Centre at (omitted) (“(omitted)”) on:
i)27 April 2013;
ii)11 May 2013;
iii)25 May 2013;
iv)8 June 2013;
(b)for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, at (omitted) on 22 June 2013, with changeover to occur at the (omitted) Contact Centre at (omitted);
(c)for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, commencing on 6 July 2013 and each alternate Saturday thereafter with changeovers to occur as agreed or, failing agreement, at the (omitted) Contact Centre at (omitted), and with such time to be spent as agreed or, failing agreement, at public venues chosen by the maternal grandmother.
Unless otherwise agreed, the Applicant Maternal Grandmother be restrained from the following:
(a)removing the child from (omitted) when spending time with the child pursuant to paragraph 2(a) herein; and
(b)taking the child to her residence or the residence of any third party during the time that the child spends with her pursuant to these Orders.
The Applicant Maternal Grandmother and the First Respondent Father, MR ABRAHAM, each pay half of any fee charged by the (omitted) Contact Centre at (omitted) to facilitate paragraphs 2(b) and (c) herein.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow…

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 Sheldon and Abraham and Ors

Details

AGLC: SHELDON & ABRAHAM & ORS [2013] FCCA 48
Case: [2013] FCCA 48
Decision Date: 19 April 2013

CaseChat Overview and Summary

This matter concerned an application by MS SHELDON, the maternal grandmother, for orders regarding the time the child, X, would spend with her. The application was made against MR ABRAHAM, the child's father, and other respondents. The proceedings were before Judge Monahan.

The court was required to determine the specific arrangements for the child X to spend time with the applicant maternal grandmother. This involved setting out the duration, dates, times, and locations for these periods of contact, as well as imposing certain restrictions on the grandmother during these times. The court also needed to address the costs associated with facilitating some of these contact arrangements.

Judge Monahan made orders continuing previous court orders, with specific amendments to paragraphs 4 and 5. The court then detailed the arrangements for the child X to spend time with the maternal grandmother, including specific dates and durations for supervised contact at a play centre and a contact centre. Restrictions were placed on the grandmother, preventing her from removing the child from the designated venue during contact or taking the child to her residence or a third party's residence. The maternal grandmother and the father were ordered to share equally any fees charged by the contact centre for facilitating certain contact periods. The court also noted that the particulars of the obligations and consequences of contravention were set out in an annexure to the orders, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The Orders made on 15 March 2013 continue in full force and effect with the exception of paragraph 4 and 5 therein which are discharged.

The child X, born on (omitted) 2010, (“the child”) spend time with MS SHELDON (“the Applicant Maternal Grandmother”) as agreed or, failing agreement, as follows:

(a) for two (2) hours at times to be agreed or, failing agreement, from 10:00am until 12noon at the (omitted) Play Centre at (omitted) (“(omitted)”) on:

i) 27 April 2013;

ii) 11 May 2013;

iii) 25 May 2013;

iv) 8 June 2013;

(b) for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, at (omitted) on 22 June 2013, with changeover to occur at the (omitted) Contact Centre at (omitted);

(c) for four (4) hours at times to be agreed or, failing agreement, from 10:00am until 2:00pm, commencing on 6 July 2013 and each alternate Saturday thereafter with changeovers to occur as agreed or, failing agreement, at the (omitted) Contact Centre at (omitted), and with such time to be spent as agreed or, failing agreement, at public venues chosen by the maternal grandmother.

Unless otherwise agreed, the Applicant Maternal Grandmother be restrained from the following:

(a) removing the child from (omitted) when spending time with the child pursuant to paragraph 2(a) herein; and

(b) taking the child to her residence or the residence of any third party during the time that the child spends with her pursuant to these Orders.

The Applicant Maternal Grandmother and the First Respondent Father, MR ABRAHAM, each pay half of any fee charged by the (omitted) Contact Centre at (omitted) to facilitate paragraphs 2(b) and (c) herein.

AND THE COURT NOTES THAT:

(A) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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