WEISS & BEATTY - [2019] FCCA 1786

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEISS & BEATTY

[2019] FCCA 1786

Catchwords:
FAMILY LAW – Interim parenting – allegations of family violence – parental responsibility – children’s best interest – children to live with mother and spend time with father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 60CG, 65DAA

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode v Goode (2007) 36 Fam LR 422

Howard & Howard [2016] FamCA 455

Keats & Keats [2016] FamCAFC 156

Mazorski & Albright [2007] FamCA 520

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MS WEISS

Respondent:

MR BEATTY

File Number:

PAC 4533 of 2018

Judgment of:

Judge Obradovic

Hearing date:

22 February 2019

Date of Last Submission:

22 February 2019

Delivered at:

Parramatta

Delivered on:

28 June 2019

REPRESENTATION

Appearing for the Applicant:

Ms Morrison

Solicitors for the Applicant:

Mahony Family Lawyers

Appearing for the Respondent:

Ms Bromley

Solicitors for the Respondent:

Legal Aid New South Wales

ORDERS

The parents shall have equal shared parental responsibility for the children [X] born … 2012 and [Y] born … 2014.
The children shall live with the mother.
Commencing on the first Friday following the making of these orders, the children shall spend time with the father:
(a)from after school or 3pm on Friday to before school or 9am on Wednesday and each alternate week thereafter;
(b)On Father’s Day from 10am until 5pm; and
(c)On Christmas Day from 1pm until 6pm.
Changeover shall occur at the children’s school/day care or otherwise by the parents meeting at the taxi rank behind Location B in Suburb G.
The father is restrained by injunction from physically disciplining or chastising the children or causing, permitting or allowing any other person to do so.
The parents are restrained by injunction from denigrating the other parent or members of the other parent’s family to or in the presence or hearing of the children and shall immediately remove the children from the vicinity of any other person doing so.
The parents shall communicate in relation to all matters concerning the children by text message, save for in an emergency, where they shall communicate via telephone call.
The parents shall at all times keep one another informed of their current contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring.
In the event of either child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
Each of Ms Weiss and Mr Beatty and their servants and agents be and are hereby restrained from removing or…

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 WEISS & BEATTY

Details

AGLC: WEISS & BEATTY [2019] FCCA 1786
Case: [2019] FCCA 1786
Decision Date: 28 June 2019

CaseChat Overview and Summary

In the matter of *Weiss & Beatty*, heard by Judge Obradovic, the dispute concerned interim parenting arrangements for two children, [X] and [Y]. The proceedings involved allegations of family violence, and the court was required to determine the best interests of the children in light of these allegations.

The primary legal issues before the court were how to best promote the children's welfare and development, particularly in circumstances involving family violence, and what interim parenting orders were appropriate to ensure their safety and well-being. This included determining the living arrangements for the children, the extent of time they should spend with each parent, and the specific conditions and restrictions to be placed on the parents' responsibilities and interactions.

The court ordered that the parents share equal parental responsibility for the children, but that the children live with the mother. The father was granted specific time with the children, including a significant portion of the week and alternating weekends, with detailed provisions for changeovers. Crucially, the court imposed injunctions restraining the father from physically disciplining the children and both parents from denigrating each other or members of their families in the children's presence. Further orders mandated specific communication methods between the parents, required them to keep each other informed of contact details, and established protocols for medical emergencies. To address concerns about the children leaving Australia, the court also made orders preventing their removal from the Commonwealth and directed the Australian Federal Police to place the children's names on a Watch List.

Orders

Orders of the court

The parents shall have equal shared parental responsibility for the children [X] born … 2012 and [Y] born … 2014.

The children shall live with the mother.

Commencing on the first Friday following the making of these orders, the children shall spend time with the father:

(a) from after school or 3pm on Friday to before school or 9am on Wednesday and each alternate week thereafter;

(b) On Father’s Day from 10am until 5pm; and

Changeover shall occur at the children’s school/day care or otherwise by the parents meeting at the taxi rank behind Location B in Suburb G.

The father is restrained by injunction from physically disciplining or chastising the children or causing, permitting or allowing any other person to do so.

The parents are restrained by injunction from denigrating the other parent or members of the other parent’s family to or in the presence or hearing of the children and shall immediately remove the children from the vicinity of any other person doing so.

The parents shall communicate in relation to all matters concerning the children by text message, save for in an emergency, where they shall communicate via telephone call.

The parents shall at all times keep one another informed of their current contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring.

In the event of either child suffering a medical emergency requiring medical attention whilst in the care of either parent:

(a) The other parent is to be notified as soon as practicable;

(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and

(c) The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.

10.

Each of Ms Weiss and Mr Beatty and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of [X] born … 2012 and/or [Y] born … 2014 from the Commonwealth of Australia.

11.

[X] born … 2012 and [Y] born … 2014 be and are hereby restrained from leaving the Commonwealth of Australia.

12.

It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years or pending further order.

13.

Upon expiration of the period referred to in Order 12 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

14.

List the matter for directions at 2.15pm on 20 September 2019.

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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