TUPPAHIGE & LEATON - [2015] FamCA 314

FAMILY COURT OF AUSTRALIA

TUPPAHIGE & LEATON

[2015] FamCA 314

FAMILY LAW – CHILDREN – Interim Orders – where previous consent order provided for shared care arrangement – acrimonious relationship – mother’s time with children previously suspended pending investigation of sexual abuse – where allegations unsubstantiated – ICL supports a return to shared care arrangement – consideration of Family Report –best interests of the children – orders made for a return to shared care arrangement.

Family Law Act 1975 (Cth) s 60CC

Andrew & Delaine [2009] FamCAFC 182
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Tuppahige

RESPONDENT:

Ms Leaton

INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

FILE NUMBER:

ADC

865

2010

DATE DELIVERED:

30 April 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Stokes

SOLICITOR FOR THE APPLICANT:

Marie Stokes

COUNSEL FOR THE RESPONDENT:

Ms Poetsch

SOLICITOR FOR THE RESPONDENT:

Southern Community Justice Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

Orders

That the order of 4 December 2014 be discharged NOTING that the orders of 28 August 2013 now represent the operative parenting provisions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tuppahige & Leaton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 865 of 2010

Mr Tuppahige

Applicant

And

Ms Leaton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 28 August 2013 Ms Leaton (“the mother”) and Mr Tuppahige (“the father”) agreed to final orders in respect of the parenting arrangements for the children C born in 2007 and R born in 2009 (“the children”). The orders are both comprehensive and complex. An inadequate summary however is that the children live with each of the parties on an alternate week basis.
On 23 September 2013 the father filed the first of a number of initiating applications seeking that he have sole parental responsibility for the children and that they remain in his primary care.
The parties have remained in litigation in respect of the appropriateness of the parenting orders to the present date.
Following an extensive history of notifications by the father that the children were at risk and allegations of sexual abuse, the proceedings came before me on 12 September 2014 at short notice. On that occasion, the orders reflect that leave was given for a representative of Families SA to intervene in the proceedings. Upon the basis that a report would be requested pursuant to s 69ZW (1) of the Family Law Act 1975 (Cth) (“the Act”) and the appointment of an Independent Children’s Lawyer (“ICL”), I adjourned the proceedings to 1 October 2014 and ordered that paragraph 2 of the final orders made 28 August 2013 be suspended. The consequence of that order was that during the interim period the children lived with the father 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.

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Details

AGLC: TUPPAHIGE & LEATON [2015] FamCA 314
Case: [2015] FamCA 314
Decision Date: 30 April 2015

CaseChat Overview and Summary

The parties to this proceeding were Tuppahige and Leaton, with the dispute concerning parenting orders. The matter came before Berman J in the Family Court of Australia.

The central legal issue before the Court was the operative parenting provisions governing the parties' arrangements for their children. Specifically, the Court was required to determine whether the orders made on 4 December 2014 should remain in effect or if the previously made orders of 28 August 2013 should be reinstated as the operative parenting provisions.

Berman J discharged the order of 4 December 2014. The Court reasoned that this discharge meant the orders made on 28 August 2013 would now constitute the operative parenting provisions governing the parties' arrangements for their children.

The final orders of the Court were that the order of 4 December 2014 be discharged, with the orders of 28 August 2013 now representing the operative parenting provisions.

Orders

Orders of the court

That the order of 4 December 2014 be discharged NOTING that the orders of 28 August 2013 now represent the operative parenting provisions.

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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