Waine and Ferber - [2018] FCCA 2959

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAINE & FERBER

[2018] FCCA 2959

Catchwords:
FAMILY LAW – Parenting – whether time with the father should be supervised – consideration of the court’s family violence best practice principles – allegations of family violence – consideration of unacceptable risk – consideration of the definition of family violence.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA,
69ZX.
Crimes (Sentencing Procedure) Act 1999 (NSW), s.9
Evidence Act1995, pt.3.2, s.75

Cases cited:
Re K [1994] FLC 92-461
U and U [2002] FLC 93-112
Green & Graham [2011] FamCAFC 248
Goode & Goode (2006) FLC 93-286
Cameron & Walker (2010) FLC 93-445
Marvel & Marvel (No.2) [2010] FamCAFC 101
Johns & Jasapas [2016] FamCA 471
Merryman and Merryman [1993] FamCA 142
Salah & Salah [2016] FamCAFC 100

N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
A v A [1976] VicRp 24; (1976) VR 298
Marriage of M (1987) 11 Fam LR 765
B. v. B. (Access) (1986) FLC 91-758
Leveque v Leveque (1983) 54 B CLR 164
re G. (a minor) (1987) 1 WLR 1461
Harridge & Harridge [2010] FamCA 445

Other articles cited:
Linda Merz-Perez & Kathleen M. Heide, Animal Cruelty: Pathway to Violence Against People (Rowman Altamira, 2004)
Alan Parkes, Animal Law Compendium - Part 2: Criminal and Cruelty Offences: The Link between Animal Cruelty and Interpersonal Violence, A selection of student research papers School of Law and Justice, Southern Cross University
Family Violence Committee, Family Violence Best Practice Principles (December 2015, Edition 3.2)

Applicant:

MS WAINE

Respondent:

MR FERBER

File Number:

WOC 42 of 2018

Judgment of:

Judge Harman

Hearing date:

21 March 2018

Date of Last Submission:

21 March 2018

Delivered at:

Wollongong

Delivered on:

21 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Williamson

Solicitors for the Applicant:

Acorn Lawyers

Counsel for the Respondent:

Mr Hosking

Solicitors for the Respondent:

Hosking Legal

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Pursuant to s.11F of the Family Law Act 1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference with the Applicant to attend at 9:00am and the Respondent at 10:00am on 17 May 2018 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived…

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 Waine and Ferber

Details

AGLC: Waine and Ferber [2018] FCCA 2959
Case: [2018] FCCA 2959
Decision Date: 21 March 2018

CaseChat Overview and Summary

In the matter of *Waine and Ferber*, heard by Judge Harman, the proceedings concerned parenting orders for a child, [X], born in 2011. The dispute involved allegations of alcohol abuse, family violence, and potential child abuse, impacting the child's best interests and the parents' capacity to care for [X]. The court was required to determine how best to protect the child and ascertain her views in light of these serious allegations.

The court was required to determine several key legal issues. Firstly, it needed to consider the appropriate case management and dispute resolution mechanisms to address the complex allegations and the child's welfare. Secondly, the court had to decide whether to appoint an Independent Children’s Lawyer (ICL) and, if so, on what basis and with what powers. Finally, the court was tasked with making interim orders regarding the child's time with her father, suspending prior orders pending further investigation and determination.

In its reasoning, the court applied provisions of the *Family Law Act 1975*, including section 11F to direct the parties to attend a Child Inclusive Child Dispute Conference with a Family Consultant. This was intended to facilitate agreement and identify issues for determination, with the consultant to report on any agreements, outstanding issues, and the child's views. Crucially, the court exercised its power under section 68L to appoint an Independent Children’s Lawyer for [X], citing concerns about alcohol abuse, family violence, the child's tender years, her expressed views, and potential undue influence on those views. The court also made interim orders suspending prior parenting orders concerning the child spending time with her father, pending further orders.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Pursuant to s.11F of the Family Law Act 1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference with the Applicant to attend at 9:00am and the Respondent at 10:00am on 17 May 2018 and:

(a) The parties shall continue to attend at such times, dates and places as the consultant may advise;

(b) The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;

(c) The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:

(i) Any agreement reached between the parties;

(ii) The issues raised by the parties and which will require determination by the Court;

(iii) Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

(iv) Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.

The matter is adjourned for further mention and directions and, if required, interim hearing to 18 May 2018 at 9:30am.

Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

Pending further Order and until 5:00pm 18 May 2018, suspend the operation of prior parenting Orders made 2 April 2014 insofar as they relate to the child [X] born 2011 spending time with her father (including but not limited to Order 11 of those Orders).

EXHIBIT A

APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER

Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child the subject of these proceedings, [X] born 2011.

The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.

Each of the parties shall, within seven (7) days of any request by the Independent Children’s Lawyer:

(a) Complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.

(b) Provide to the Independent Children’s lawyer copies of all any documents filed by them in these proceedings together with:

(i) Any medical reports they hold relating to the child;

(ii) Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;

(iii) Any school reports they hold for the child;

(iv) Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.

Each of the parties shall present the child to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child.

Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.

Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.

The appointment of the Independent Children’s Lawyer is made on the following bases:

(a) There are issues of alcohol abuse in relation to either party or other persons having significant contact with the child which are alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect the child/ren;

(b) The child is of tender years and require protection from conflict;

(c) The child is of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that the child have a voice in the proceedings and with respect to decisions that will affect their future;

(d) It is suggested that the child is expressing clear views to which weight would be attached and/or with respect to which there are allegations that such views have been influenced such as to not warrant the attachment of weight and/or are suggested not to accord with their best interests;

(e) There are allegations of Family Violence and/or abuse suggested to impact upon the child’s best interests.

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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