Swefford and Tarbell - [2012] FamCA 72

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL

[2012] FamCA 72

FAMILY LAW – CHILDREN – spend time with – supervised

Family Law Act (Cth) 1975

APPLICANT:

Ms Swefford

RESPONDENT:

Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

2 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

2 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodchild

SOLICITOR FOR THE APPLICANT:

Self represented

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Sydney

Orders

The Court makes no further orders as a result of the application of the mother contained in Exhibit 1 marked on 12 January 2012.

The costs of all parties of and incidental to today are reserved.

To the extent that any of the existing orders relate to Associate Professor Q, those orders are stayed pending further order of the Full Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

REASONS FOR JUDGMENT

These are interim proceedings in relation to a child, D. I made a decision on 22 November last year in relation to interim parenting arrangements and in relation to the single expert in the substantive proceedings. Reasons were taken out at the time and they provide something of a history of the case and my involvement in the case which arose out of the trial judge being unavailable for a period.
I understand that aspects of the orders were made on 22 November 2011 are the subject of an appeal both by the mother and the father - I think different aspects. I understand that on 23 February 2012 the appeal index will be settled. There was an application for a stay of aspects of my orders in relation to supervised time. That application was dealt with on 12 January 2012 and I ordered a partial suspension of one of the orders in relation to an expert and otherwise no further orders were made in relation to the stay. Nothing was said in support of the application for a stay on behalf of the mother today so there is no remaining issue in relation to that, as I understand it.
The matters for today arose out of a document that was handed up on 12 January 2012 which was marked exhibit1. A number of orders sought. After a discussion between the bench and bar table on that date, I said that I would not entertain some of the prayers for relief that went to the issue of there being unsupervised time between the mother and the child. I made that decision on the basis that the issue had been already dealt with. The remaining issues were 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.

Continue reading Swefford and Tarbell

Details

AGLC: Swefford and Tarbell [2012] FamCA 72
Case: [2012] FamCA 72
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms Swefford (the mother) against Mr Tarbell (the father) concerning interim parenting arrangements for their child, D. The proceedings were before Loughnan J of the Family Court of Australia. The mother sought various orders, including a change of supervised contact centre, adjustments to supervision fees, and a range of other orders relating to communication, medical information, parental responsibilities, and restrictions on denigration and discussion of proceedings.

The primary legal issues before the court were whether there had been a significant change in circumstances justifying a variation of existing interim orders regarding supervised contact arrangements, and whether the other orders sought by the mother constituted machinery changes or were otherwise appropriate to be made at this stage. The court was required to consider the principles of avoiding repeated litigation on the same issues, particularly in children's matters, and to assess the evidence presented by the mother regarding the alleged deterioration of the supervised contact centre's facilities, the financial burden of the fees, and the father's alleged interference with the centre's independence.

Loughnan J determined that no further orders should be made in relation to the mother's application. The court found that the alleged changes to the supervised contact centre's physical environment and the mother's financial difficulties did not constitute a substantial change in circumstances sufficient to warrant revisiting the existing supervision arrangements. Furthermore, allegations of the father compromising the contact centre's independence were largely based on events predating the previous hearing. The court also declined to make the other orders sought, characterising them as not being machinery matters or arising from a change of circumstances, and noting that many of these issues had already been considered in previous interim hearings.

Consequently, the court made no further orders as a result of the mother's application. The costs of all parties in relation to the hearing were reserved. Additionally, any existing orders relating to Associate Professor Q were stayed pending further order of the Full Court.

Orders