Torres and Torres - [2010] FMCAfam 1456

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TORRES & TORRES

[2010] FMCAfam 1456

FAMILY LAW – Parenting – interim – non-compliance with recently made final orders – allegations of suicide attempts by 11 year old child.

Family Law Act 1975, ss.60CA, 60CC, 62B, 64B, 65D, 65DA, 67U, 67V, 68L, 69ZT

Goode & Goode (2006) FLC 93-286

Applicant:

MS TORRES

Respondent:

MR TORRES

File Number:

SYC 5754 of 2007

Judgment of:

Monahan FM

Hearing date:

15 December 2010

Date of Last Submission:

17 December 2010

Delivered at:

Sydney

Delivered on:

17 December 2010

REPRESENTATION

Counsel for the Applicant:

None

Solicitors for the Applicant:

Friend & Co. Lawyers

Counsel for the Respondent:

None

Solicitors for the Respondent:

Self Represented Litigant

ORDERS

THE COURT ORDERS THAT:

All extant applications be adjourned to this Court on 4 March 2011 at 10:00am for mention (“the mention hearing”).
The Respondent facilitate the return of [Z], born [in] 1998 (“the youngest child”) to the Applicant by no later than 12 noon on

18 December 2010.
The Respondent facilitate [X], born [in] 1995, and [Y], born [in] 1997 (“the elder children”) to spend time from 12 noon on 18 December 2010 with the Applicant pursuant to paragraph 4(b) of the Orders made on 12 August 2010.
The Applicant have liberty to apply on 24 hours notice should the Respondent fail to comply with paragraphs 2 and 3 herein.
The Applicant as soon as possible obtain a referral from a general medical practitioner to a psychologist for the purpose of commencing therapy to improve her parenting relationships and her parenting skills (“the therapy”).
For the purposes of paragraph 5 herein, the Applicant should either have completed the first session of the therapy or obtained an appointment with the relevant psychologist on or before seven (7) days before the mention hearing.
All current parenting orders remain in full force and effect.
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), the youngest child and the elder children be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(i)Upon appointment, the Independent Children’s Lawyer (“ICL”) file a Notice of Address for Service;
(ii)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the ICL copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(iii)The ICL fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ 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.
The ICL conduct an interview with the youngest child prior to the mention hearing.
If possible, the ICL be appointed from Legal Aid New South Wales, Bankstown as they have provided previous independent children’s representation in this matter.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B…

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 Torres and Torres

Details

AGLC: Torres and Torres [2010] FMCAfam 1456
Case: [2010] FMCAfam 1456
Decision Date: 17 December 2010

CaseChat Overview and Summary

The case of Torres and Torres was heard in a family law court, where the dispute centred around the care and custody of the children of the parties, Torres and Torres. The Applicant, Torres, sought orders to facilitate the return of the youngest child, born in 1998, and to allow the elder children, born in 1995 and 1997, to spend time with her. The Respondent, Torres, was required to comply with specific directives to ensure the children's timely return and visitation. The court also addressed the need for the Applicant to commence therapy to enhance her parenting skills and relationships.

The court was tasked with determining several legal issues, including the enforceability of specific directives to facilitate the children's return and visitation, the necessity of the Applicant's participation in therapy, and the appropriateness of appointing an Independent Children's Lawyer to represent the children's interests. Additionally, the court considered the implications of failing to comply with the orders and the role of independent representation in the children's best interests.

In its reasoning, the court held that the Respondent must comply with the directives to ensure the children's timely return and visitation with the Applicant. The court emphasised the importance of the Applicant engaging in therapy to improve her parenting capabilities. Furthermore, the court mandated the appointment of an Independent Children's Lawyer to represent the children's interests, highlighting the necessity of separate legal representation to ensure the children's voices are heard. The court also noted the potential consequences of non-compliance with the orders as outlined in the Family Law Act 1975.

The court made several orders, including the facilitation of the children's return and visitation, the commencement of therapy by the Applicant, and the appointment of an Independent Children's Lawyer. The orders also stipulated the timing and method of the Lawyer's engagement and the importance of providing the Lawyer with relevant documents and reports. The court further outlined the consequences of non-compliance with the orders as specified in Annexure A of the Act.

Orders

Orders of the court

THE COURT ORDERS THAT:

All extant applications be adjourned to this Court on 4 March 2011 at 10:00am for mention (“the mention hearing”).

The Respondent facilitate the return of [Z], born [in] 1998 (“the youngest child”) to the Applicant by no later than 12 noon on

18 December 2010.

The Respondent facilitate [X], born [in] 1995, and [Y], born [in] 1997 (“the elder children”) to spend time from 12 noon on 18 December 2010 with the Applicant pursuant to paragraph 4(b) of the Orders made on 12 August 2010.

The Applicant have liberty to apply on 24 hours notice should the Respondent fail to comply with paragraphs 2 and 3 herein.

The Applicant as soon as possible obtain a referral from a general medical practitioner to a psychologist for the purpose of commencing therapy to improve her parenting relationships and her parenting skills (“the therapy”).

For the purposes of paragraph 5 herein, the Applicant should either have completed the first session of the therapy or obtained an appointment with the relevant psychologist on or before seven (7) days before the mention hearing.

All current parenting orders remain in full force and effect.

Pursuant to s.68L(2) of the Family Law Act 1975 (“the Act”), the youngest child and the elder children be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:

(i) Upon appointment, the Independent Children’s Lawyer (“ICL”) file a Notice of Address for Service;

(ii) Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the ICL copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and

(iii) The ICL fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ 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.

The ICL conduct an interview with the youngest child prior to the mention hearing.

10.

If possible, the ICL be appointed from Legal Aid New South Wales, Bankstown as they have provided previous independent children’s representation in this matter.

AND THE COURT NOTES THAT:

(A) Pursuant to ss.65DA(2) and 62B of the Act, 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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