Shields and Greer - [2017] FCCA 761

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHIELDS & GREER

[2017] FCCA 761

Catchwords:
FAMILY LAW – Interim parenting – serious allegations risk – child has special needs – orders made pending appointment of Independent Children’s Lawyer, completion of current Department of Health and Human Services Investigation and further interim hearing.

Legislation:

Family Law Act 1975, ss.62B, 65DA(2), 68L(2)

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Morgan & Miles [2007] FamCA 1230

Applicant:

MS SHIELDS

Respondent:

MR GREER

File Number:

MLC 2834 of 2017

Judgment of:

Judge Harland

Hearing date:

29 March 2017

Date of Last Submission:

29 March 2017

Delivered at:

Mildura

Delivered on:

29 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Strong

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Mr Pavone

Solicitors for the Respondent:

MIR Lawyers

ORDERS

The matter be adjourned for Interim Contested Hearing in Melbourne on 18 May 2017 at 10:00am.
The matter be consolidated with MLC2407/2017 between Greer & Shields.
Pursuant to s.68L(2) of the Family Law Act1975, the child X born (omitted) 2012 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
(a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;
(c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and
(d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.
Both parties undertake supervised drug screen testing (“the testing”):
(a)the testing occur at a pathology centre or other place approved by the Independent Children’s Lawyer; and
(b)the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur.
The results of the testing, on each occasion, be forwarded, as soon as possible, to the Independent Children’s Lawyer and the other party’s solicitors.
Until further order, the child live with the father.
The child spend time with the mother at times can be agreed, that time take place in (omitted) and in the absence of Mr R.
Pursuant to order 6 herein, the mother is to nominate, in writing, times in blocks of less than two days.
The mother provide the full name and date of birth of her partner, Mr R, to the father’s solicitor.

NOTING

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 and…

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 Shields and Greer

Details

AGLC: Shields and Greer [2017] FCCA 761
Case: [2017] FCCA 761
Decision Date: 29 March 2017

CaseChat Overview and Summary

In the Family Court of Australia, Judge Harland presided over proceedings involving parties identified as Shields and Greer. The dispute concerned parenting arrangements for a child, X, born in 2012. The court also noted a related matter, MLC2407/2017, between Greer and Shields, which was consolidated with the present proceedings.

The court was required to determine several key issues, including the independent representation of the child X, the undertaking of supervised drug screen testing by both parties, and the interim living and contact arrangements for the child. The court also needed to consider the implications of contravening the orders made.

Judge Harland ordered that the matter be adjourned for an interim contested hearing. Crucially, the court ordered that the child X be independently represented pursuant to s.68L(2) of the *Family Law Act 1975*, with Victoria Legal Aid requested to arrange this representation and to ensure the independent children's lawyer fulfilled specific duties, including filing a Notice of Address for Service, receiving relevant documents from the parents' solicitors, adhering to published guidelines, and preparing a minute of recommended final orders. Both parties were ordered to undertake supervised drug screen testing at locations approved by the independent children's lawyer, randomly and within 24 hours of a written request, with results to be provided to the independent children's lawyer and the other party's solicitors. Until further order, the child was to live with the father, and spend time with the mother at agreed times, in a specified location and in the absence of Mr R. The mother was to nominate contact times in writing, and provide the full name and date of birth of Mr R to the father's solicitor. The orders also included particulars of obligations, consequences of contravention, and sources of assistance, as set out in Attachment A, pursuant to ss.65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

The matter be adjourned for Interim Contested Hearing in Melbourne on 18 May 2017 at 10:00am.

The matter be consolidated with MLC2407/2017 between Greer & Shields.

Pursuant to s.68L(2) of the Family Law Act 1975, the child X born (omitted) 2012 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

(a) forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

(b) within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;

(c) the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

(d) the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

Both parties undertake supervised drug screen testing (“the testing”):

(a) the testing occur at a pathology centre or other place approved by the Independent Children’s Lawyer; and

(b) the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur.

The results of the testing, on each occasion, be forwarded, as soon as possible, to the Independent Children’s Lawyer and the other party’s solicitors.

Until further order, the child live with the father.

The child spend time with the mother at times can be agreed, that time take place in (omitted) and in the absence of Mr R.

Pursuant to order 6 herein, the mother is to nominate, in writing, times in blocks of less than two days.

The mother provide the full name and date of birth of her partner, Mr R, to the father’s solicitor.

NOTING

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 and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these 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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