Wall and Pearson - [2016] FCCA 2654

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALL & PEARSON

[2016] FCCA 2654

Catchwords:
FAMILY LAW – Interim arrangements for parenting of children aged 8 & 4 – children both conceived by artificial conception procedure – parties previously in same sex relationship – each party is biological parent of one child – children currently separated – matters to be considered – best interests – nature of interim hearing.

Legislation:

Family Law Act 1975, ss.4, 11F, 60H, 60CA, 60CC, 64B, 65D, 68L & 69R

Cases cited:

Tobin v Tobin (1999) FLC 92-848
Groth & Banks [2013] FamCA 4 30
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Goode & Goode (2006) FLC 93-286

Applicant:

MS WALL

Respondent:

MS PEARSON

File Number:

ADC 1693 of 2016

Judgment of:

Judge Brown

Hearing date:

4 October 2016

Date of Last Submission:

4 October 2016

Delivered at:

Adelaide

Delivered on:

17 October 2016

REPRESENTATION

Counsel for the Applicant:

Ms M Dickson

Solicitors for the Applicant:

Susan Litchfield Solicitor

Counsel for the Respondent:

Ms A Horvat

Solicitors for the Respondent:

Judith Jordan

ORDERS

Until Further or Other Order:

The child X born (omitted) 2012 (hereinafter referred to as X) live with the respondent mother Ms Pearson.
The child Y born (omitted) 2008 (hereinafter referred to as Y) live with the applicant mother Ms Wall.
The child X spend time with Y and the applicant mother Ms Wall as follows:
(a)On alternate weekends from 10.00 am Saturday until 6.00 pm the following Sunday commencing 22 October 2016;
(b)On alternate Wednesdays from 4.00 pm until 7.00 pm commencing 19 October 2016;
(c)On Christmas Day between 10.00 am and 6.00 pm;
(d)On (omitted) 2017 between 1.00 pm and 6.00pm.
The child Y spend time with X and the respondent mother Ms Pearson as follows:
(a)On alternate Saturdays from 10.00 am until 6.00 pm commencing 29 October 2016;
(b)On alternate Wednesdays from 4.00 pm until 7.00 pm commencing 26 October 2016;
(c)On Christmas Eve between 10.00 am and 6.00 pm;
(d)On (omitted) 2017 between 1.00 pm and 6.00pm.
The children be exchanged to give effect to these orders at any location as agreed between the parties and failing agreement to be at (omitted), Adelaide.
Each party is restrained and an injunction issues restraining each of them from:
(a)denigrating, harassing, abusing or assaulting the other in the presence of or within the hearing of either Y or X or both of them or permitting any other person to do so;
(b)discussing these proceeding directly with either Y or X or both of them or within their hearing or permitting any other person to do so
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children Y born (omitted) 2008 and X born (omitted) 2012 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission…

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 Wall and Pearson

Details

AGLC: Wall and Pearson [2016] FCCA 2654
Case: [2016] FCCA 2654
Decision Date: 17 October 2016

CaseChat Overview and Summary

This matter concerned an application before Judge Brown regarding the living arrangements and time spent between two children, X and Y, and their respective mothers, Ms Wall (the applicant) and Ms Pearson (the respondent). The dispute centred on establishing orders for the children's residence and contact.

The court was required to determine the primary residence of each child, X and Y, and to make orders for the time each child would spend with the other parent and sibling. Additionally, the court needed to consider the need for injunctions to prevent certain behaviours between the parents in the presence of the children, and the appointment of an Independent Children’s Lawyer to represent the children's interests.

In reaching its decision, the court made orders for the children to live with different mothers, with specific provisions for time spent together and with the non-resident parent. The court also issued injunctions restraining both Ms Wall and Ms Pearson from denigrating, harassing, abusing, or assaulting each other in the presence or hearing of the children, and from discussing the proceedings with the children or within their hearing. Furthermore, pursuant to section 68L of the *Family Law Act 1975*, the court ordered the appointment of an Independent Children’s Lawyer for both children. The matter was adjourned for further directions.

Orders

Orders of the court

Until Further or Other Order:

The child X born (omitted) 2012 (hereinafter referred to as X) live with the respondent mother Ms Pearson.

The child Y born (omitted) 2008 (hereinafter referred to as Y) live with the applicant mother Ms Wall.

The child X spend time with Y and the applicant mother Ms Wall as follows:

(a) On alternate weekends from 10.00 am Saturday until 6.00 pm the following Sunday commencing 22 October 2016;

(b) On alternate Wednesdays from 4.00 pm until 7.00 pm commencing 19 October 2016;

(d) On (omitted) 2017 between 1.00 pm and 6.00pm.

The child Y spend time with X and the respondent mother Ms Pearson as follows:

(a) On alternate Saturdays from 10.00 am until 6.00 pm commencing 29 October 2016;

(b) On alternate Wednesdays from 4.00 pm until 7.00 pm commencing 26 October 2016;

(d) On (omitted) 2017 between 1.00 pm and 6.00pm.

The children be exchanged to give effect to these orders at any location as agreed between the parties and failing agreement to be at (omitted), Adelaide.

Each party is restrained and an injunction issues restraining each of them from:

(a) denigrating, harassing, abusing or assaulting the other in the presence of or within the hearing of either Y or X or both of them or permitting any other person to do so;

(b) discussing these proceeding directly with either Y or X or both of them or within their hearing or permitting any other person to do so

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children Y born (omitted) 2008 and X born (omitted) 2012 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

The further hearing of the matter be listed for directions on 16 March 2017 at 9.30 am.

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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