Silver & Pilot - [2022] FedCFamC1F 438

Federal Circuit and Family Court of Australia
(DIVISION 1)
Silver & Pilot [2022] FedCFamC1F 438

File number(s): MLC 10303 of 2018

Judgment of: BENNETT J

Date of judgment: 8 June 2022

Catchwords:
FAMILY LAW – PRACTICE & PROCEDURE – where father exercises mechanism to bring matter back before the court urgently on alleged noncompliance by mother with parenting orders.

FAMILY LAW – PARENTING – where mother refuses to comply with orders for contact of 5 year old twins with the father – where mother takes children to undisclosed safe house – where father seeks recovery order and mother seeks an adjournment for short service.

FAMILY LAW – PARENTING – where mother’s unilateral actions have afforded her more than adequate opportunity to prepare her case – where mother has not applied for variation of parenting order – where adjournment granted on basis that father would see children extensively pending adjournment.

FAMILY LAW – PARENTING – where state welfare authority has yet to complete investigations but, thus far, has no concerns about children in case of father but identifies that, the children are likely to suffer emotional abuse in the care of the mother.

FAMILY LAW – PARENTING – where independent children’s lawyer is requested to apply for extension of assistance to have both parents psychiatrically assessed.

FAMILY LAW – PRACTICE & PROCEDURE – where reasons for decision are to be sent to Magistrates Court where mother has made an application for an Intervention Order.

FAMILY LAW – JURISDICTION – where this Order is inconsistent with an existing interim Intervention Order – where this Order is to have priority

Legislation: Family Law Act 1975 (Cth) ss 60CC, 68P

Division: Division 1 First Instance

Number of paragraphs: 70

Date of hearing: 8 June 2022

Place: Melbourne (via Ms Teams)

Counsel for the Applicant: Mr Jackson

Solicitor for the Applicant: Heinz Law

Counsel for the Respondent: Ms Foong

Solicitor for the Respondent: Matrix Legal

Independent Children’s Lawyer Sarah Lia Family Lawyer
ORDERS

MLC 10303 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SILVER

Applicant

AND:
MS PILOT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BENNETT J

DATE OF ORDER:

8 June 2022

THE COURT ORDERS THAT:
1.Paragraphs 3, 4, 5 and 6 of the Order dated 19 October 2020 be suspended and otherwise those orders remain in full force and effect.
2.This matter be adjourned for interim hearing on 21 July 2022 at 9:00 am by electronic means (“the adjourned date”).
3.The Child Court Expert be the first witness on the adjourned date AND IT IS REQUESTED that he/she be available to be cross-examined at 9:00 am.
4.At 4:00pm on 8 June 2022, the mother present the children Y and X both born 2017 (“the children”) for changeover to the father at Location Q, Suburb O.
5.By 4:00pm on 17 June 2022, the mother make file and serve a Response and any interim relief sought together with any evidence that she seeks to rely upon, including an up to…

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 Silver & Pilot

Details

AGLC: Silver & Pilot [2022] FedCFamC1F 438
Case: [2022] FedCFamC1F 438
Decision Date

CaseChat Overview and Summary

The proceedings between Mr Silver and Ms Pilot concern their 5-year-old twins, Y and X. Mr Silver has filed an urgent interim application alleging that Ms Pilot has unilaterally withheld the children from him, contrary to the final parenting orders of 19 October 2020. The father seeks interlocutory orders, including sole parental responsibility, interim sole residence, and alterations to the existing parenting arrangements. Ms Pilot applied for an adjournment to enable her to prepare answering material. The court was required to decide whether to grant the mother's application for an adjournment and whether to alter the existing parenting arrangements. Justice Bennett granted the mother's application for an adjournment but altered the existing parenting arrangements in the interim. The court found that the mother's unilateral actions and their consequences required the court's urgent attention to protect the children and to enable appropriate evidence to be obtained as soon as practicable. The court was of the view that it was in the best interests of the children to be reunited with the father as quickly as possible and that they should be returned to their familiar surrounds. The court also found that the children should spend extra time with the father, effectively doubling his time with the children as an interim measure.

Orders