Somerville and Somerville and Anor - [2014] FCCA 695

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERVILLE & SOMERVILLE & ANOR [2014] FCCA 695

Catchwords:
FAMILY LAW – Interim parenting – children in care of the Secretary pursuant to earlier interim orders – whether they should be restored to the mother’s care – weight to be given to expert evidence – where there are serious issues raised about the mother’s mental health.

FAMILY LAW – Interim property – where mother in sole occupation of the family home – where Secretary proposes transitioning care of children back to the father – where properties are mortgaged, rented out, and in need of renovations – order for sole occupancy – father to contribute to cost of mother’s rental out of rentals received from properties.

Legislation:

Family Law Act 1975 (Cth) – ss.60CA, 60B, 61DA, 61DAA, 60CC, Part VII and Part VIII

MRR v GR [2010] HCA 4
Goode & Goode [2006] FamCA 1346

Applicant: MR SOMERVILLE

Respondent: MS SOMERVILLE

Intervenor: DEPARTMENT OF FAMILY & COMMUNITY SERVICES

File Number: WOC 1043 of 2012

Judgment of: Judge Altobelli

Hearing dates: 11 & 13 March 2014

Date of Last Submission: 13 March 2014

Delivered at: Sydney

Delivered on: 21 March 2014
REPRESENTATION

Counsel for the Applicant: Ms Gillies

Solicitors for the Applicant: Rita Thakur & Associates

Counsel for the Respondent: Mr Miller

Solicitors for the Respondent: Rossi Simicic Lawyers

Counsel for the Intervenor: Mr Anderson

Solicitor for the Intervenor: Crown Solicitors Office

Counsel for the Independent Children’s Lawyer: Mr MacPherson

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW (omitted)
ORDERS
(1)All previous orders and parenting plans are discharged.
THAT PENDING FURTHER ORDER:
(2)The Minister for Family and Community Services be granted sole parental responsibility for:
(a)X (“X”), born on (omitted) 2006, presently aged 7 years, 8 months;
(b)Y (“Y”), born on (omitted) 2005, presently aged 9 years;
(c)W (“W”), born on (omitted) 2003, presently aged 10 years 4 months; and
(d)Z (“Z”), born on (omitted) 2002, presently aged 11 years 8 months

hereafter collectively referred to as “the children”
(3)The Minister or the Secretary as delegate of the Minister shall determine where and with whom the children live.
(4)Pursuant to s.68B and 67ZC of the Family Law Act1975 (“the Act”) the First Respondent, Ms Somerville (“the mother”), is hereby restrained by injunction from:
(a)spending any time with any or all of the children;
(b)approaching, communicating or contacting by any means, including through any third person other than the Secretary, any or all of the children;
(c)entering or remaining in or being within 200 metres of any place of education or residence of any of the children and contacting by any means, including through any third person other than the Secretary any place of education or residence of any of the children;
(d)be restrained from removing or attempting to remove any or all of the children from his or her place of residence or educational facility;
(e)harassing, molesting, stalking, threatening or causing bodily harm, to any or all of the children or any person in…

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.

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Details

Case: [2014] FCCA 695
Decision Date: 21 March 2014

CaseChat Overview and Summary

In the matter of Somerville and Somerville and Anor, Judge Altobelli of the Federal Circuit Court of Australia considered interim parenting and property matters. The dispute involved the care of four children, who were in the care of the Minister for Family and Community Services, and the disposition of the family home. The mother sought the restoration of the children to her care, while the father proposed transitioning their care back to him.

The court was required to determine the best interests of the children in relation to their interim care arrangements, particularly in light of serious issues raised concerning the mother's mental health and the weight to be given to expert evidence on this matter. Additionally, the court had to make interim orders regarding the family home, which was jointly owned but in the mother's sole occupation, and was mortgaged, rented out, and in need of renovations.

The court's reasoning focused on the paramountcy of the children's welfare. Given the concerns raised about the mother's mental health, the court ordered that the Minister retain sole parental responsibility for the children, with the Minister determining their living arrangements. The mother was significantly restrained by injunction from spending time with, contacting, or approaching the children, with provisions for police arrest upon breach. The father was to spend time with the children under conditions determined by the Secretary, including supervision and participation in counselling and anger management. Regarding the property, the mother was ordered to vacate the family home within 28 days, with the father to have sole occupation and be responsible for outgoings. The father was directed to apply rental income from the property towards renovations and the mortgage, and to account to the wife for this income. The father was also ordered to pay the wife $200 per week after she vacated the property.

Orders

Orders of the court

(1) All previous orders and parenting plans are discharged.

THAT PENDING FURTHER ORDER:

(2) The Minister for Family and Community Services be granted sole parental responsibility for:

(a) X (“X”), born on (omitted) 2006, presently aged 7 years, 8 months;

(b) Y (“Y”), born on (omitted) 2005, presently aged 9 years;

(d) Z (“Z”), born on (omitted) 2002, presently aged 11 years 8 months

hereafter collectively referred to as “the children”

(3) The Minister or the Secretary as delegate of the Minister shall determine where and with whom the children live.

(4) Pursuant to s.68B and 67ZC of the Family Law Act 1975 (“the Act”) the First Respondent, Ms Somerville (“the mother”), is hereby restrained by injunction from:

(a) spending any time with any or all of the children;

(b) approaching, communicating or contacting by any means, including through any third person other than the Secretary, any or all of the children;

(c) entering or remaining in or being within 200 metres of any place of education or residence of any of the children and contacting by any means, including through any third person other than the Secretary any place of education or residence of any of the children;

(d) be restrained from removing or attempting to remove any or all of the children from his or her place of residence or educational facility;

(e) harassing, molesting, stalking, threatening or causing bodily harm, to any or all of the children or any person in whose care any of the children are placed in the exercise of the parental responsibility of the Minister pursuant to Orders 2 and 3 herein.

(5) A Police Officer may arrest the mother without warrant, pursuant to s.68C of the Act, if such Police Officer believes on reasonable grounds that the mother has since the orders were made, breached the injunction contained in paragraph 4 of these orders and it is taken for the purposes of this order that each of the injunctions in paragraph 4 relate to the personal protection of the children or any of them.

(6) The father shall spend time with, or the children shall live with the father at times and places and on conditions, including supervision, as determined by the Secretary.

(7) The father shall have telephone contact with the children at times and on conditions determined by the Secretary.

(8) The father shall keep the Secretary informed of his home address, email address and contact telephone numbers.

(9) The father shall not consume alcohol during any time when the children are in his care and shall not be affected by alcohol at any such time.

(10) The father shall obey all reasonable directions given to him by the Secretary including but not limited to completing anger management course(s), working collaboratively with any agency to which he is referred to assist in the father’s care of the children, presenting the children for and facilitating the participation of the children and the father in any counselling to which they may be referred by the Secretary.

(11) That the mother is and shall be hereby restrained from:

(a) Applying for a passport in the name of any or all of the children;

(b) Applying for a passport in the name of herself and any or all of the children;

(c) from removing and/or causing or allowing any or all of the children to be removed from the Commonwealth of Australia.

(12) That the mother shall forthwith surrender the passport of each of the children to the Registrar of the Court, if she has not already done so.

(13) The Marshall of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either parent from removing or attempting to remove the said children from the Commonwealth of Australia.

(14) The Commissioner of the Australian Federal police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the children on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said children at all flights leaving any international airport in all States and all Territories of the Commonwealth of Australia and maintain each of the children's names on the Airport Watch List until the children attain the age of 18 years.

(15) A reference to the Secretary in these orders is to be read as a reference to the Secretary and/or a delegate of the Secretary.

(16) Liberty to relist granted to the Secretary or Independent Children’s Lawyer on 48 hour’s notice.

(17) The Wife be restrained from residing within a two kilometre radius of the Husband’s residence.

(18) The Wife be restrained from attending any of the schools which the children attend.

(19) The Wife be restrained from attending upon or approaching the Husband’s residence and further from attending within 200 meters of the Husband’s residence.

(20) Should any of the children come into the care of the Wife, she is to immediately inform the Husband by telephone of that fact and their whereabouts and make the children available for immediate collection by the Husband.

(21) The Wife be restrained from making further alterations to the property.

(22) Within 28 days of these orders the Wife vacate the property at Property M1 and the Husband have the sole occupation of the property and the Husband shall ensure that he will be responsible solely for the payment of all outgoings in respect of the property including mortgage payments, payment of council and water rates and building insurance and further the Husband shall ensure that he applies the entire amount of rental income received from the property towards completing the construction work to the property commenced by the Wife and the balance in reduction of the mortgage loan secured on the property and the Husband shall account to the Wife for the entirety of the rental income received by him.

(23) Simultaneously with vacating the property the wife provide to the husband all keys associated with the property at Property M1, and that the Wife’s name be removed from, and the husband’s name added to the registered key set for Property M1 at (omitted) locksmiths.

(24) The wife be restrained from approaching within 200m of Property M1.

(25) The Wife shall be restrained from removing from Property M1, the safe and the three safe keys and the Wife shall further ensure that the safe is left open and unlocked.

(26) The Husband is to pay to Wife $200.00 per week from the time she vacates Property M1, New South Wales.

(27) Costs be reserved.

THE COURT NOTES THAT:

(28) The terms of exhibit DG2 (transition plan).

(29) Directions regarding an adjourned date have already been made.

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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