Zarins & Mylne (No 4) - [2013] FamCA 749

FAMILY COURT OF AUSTRALIA

ZARINS & MYLNE (NO 4)

[2013] FamCA 749

FAMILY LAW – CHILDREN – Interim Orders – with whom a child should spend time – best interests – orders made for the child to spend time with the mother.

FAMILY LAW – EVIDENCE – Consideration of whether a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) should be given to the mother in respect of evidence given in her trial affidavit.

Family Law Act 1975 (Cth)
Evidence Act 1995(Cth) s 128

Wood (1976) 90-098 at p. 75,447
Harris & Harris (1977) FLC 90-276
Hall & Hall (1979) FLC 90-713
Goode & Goode [2006] FLC 93-286
Cornwell v R; R v Cornwell [2006] NSWCCA 116
Meiko Australian Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354

APPLICANT:

Ms Zarins

RESPONDENT:

Mr Mylne

INTERVENOR:

FILE NUMBER:

ADC

4802

2008

DATE DELIVERED:

3 October 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nelson QC

SOLICITOR FOR THE APPLICANT:

Belchamber Legal

COUNSEL FOR THE RESPONDENT:

Mr Edwardson QC

INDEPENDENT CHILDREN’S LAWYER:

Norman Waterhouse

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mrs Lindsay

SOLICITOR FOR THE INTERVENOR:

Legal Services Commission of SA

Orders

That further consideration of the matter be adjourned to 9am on 17 December 2013 (1 hour allowed).
That during the period of the adjournment B born … 2007 shall spend time with the mother as follows:-
(a) Each alternate Saturday and Sunday from 9am to 5pm;
(b)From the conclusion of school (or 4.30pm if not a school day) to 7.pm Thursday in each alternate week.
That all handovers not from the child’s school do occur inside the M Town Police Station between the father or his nominee and a person nominated by the mother, but in the absence of the mother.
That the mother be and is hereby restrained from permitting, allowing, encouraging, arranging or facilitating the maternal grandmother from:-
(a) Attending at or in the vicinity of the child’s school; and
(b) Approaching the child at or in the vicinity of the child’s school.
That the mother, the father and the said child shall attend upon Dr C upon such times as may be directed by the Independent Children’s Lawyer for the purpose of the preparation of an update Family Assessment Report, with such report to be published not later than 4pm on 13 December 2013.
That a Certificate be given to the applicant pursuant to Section 128 of the Evidence Act 1995 (Cth) in respect of evidence given in her trial affidavit filed 21 June 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne 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 4802 of 2008

Ms Zarins

Applicant

And

Mr Mylne

Respondent

REASONS FOR JUDGMENT

Introduction

This matter was…

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 Zarins & Mylne (No 4)

Details

AGLC: Zarins & Mylne (No 4) [2013] FamCA 749
Case: [2013] FamCA 749
Decision Date: 3 October 2013

CaseChat Overview and Summary

In *Zarins & Mylne (No 4)*, Berman J of the Family Court of Australia considered interim parenting orders concerning the time a child, B, born in 2007, would spend with the mother, and the mother's application for a certificate under section 128 of the *Evidence Act 1995* (Cth). The dispute involved the arrangements for the child's time with each parent and the mother's conduct in relation to the child's school.

The court was required to determine the best interests of the child in relation to interim time arrangements, specifically whether the child should spend time with the mother and, if so, on what terms. Additionally, the court had to consider whether to grant the mother a certificate under section 128 of the *Evidence Act 1995* (Cth) in respect of evidence she had provided in her trial affidavit.

Berman J made interim orders for the child to spend time with the mother on alternate weekends and for specified periods on alternate Thursdays. The court also made orders restraining the mother from permitting her own mother from attending at or approaching the child's school. Furthermore, the mother, father, and child were ordered to attend upon a Dr C for an updated Family Assessment Report. Crucially, the court granted the mother a certificate pursuant to section 128 of the *Evidence Act 1995* (Cth) in respect of the evidence given in her trial affidavit. The matter was adjourned for further consideration.

Orders

Orders of the court

That further consideration of the matter be adjourned to 9am on 17 December 2013 (1 hour allowed).

That during the period of the adjournment B born … 2007 shall spend time with the mother as follows:-

(a) Each alternate Saturday and Sunday from 9am to 5pm;

(b) From the conclusion of school (or 4.30pm if not a school day) to 7.pm Thursday in each alternate week.

That all handovers not from the child’s school do occur inside the M Town Police Station between the father or his nominee and a person nominated by the mother, but in the absence of the mother.

That the mother be and is hereby restrained from permitting, allowing, encouraging, arranging or facilitating the maternal grandmother from:-

(a) Attending at or in the vicinity of the child’s school; and

(b) Approaching the child at or in the vicinity of the child’s school.

That the mother, the father and the said child shall attend upon Dr C upon such times as may be directed by the Independent Children’s Lawyer for the purpose of the preparation of an update Family Assessment Report, with such report to be published not later than 4pm on 13 December 2013.

That a Certificate be given to the applicant pursuant to Section 128 of the Evidence Act 1995 (Cth) in respect of evidence given in her trial affidavit filed 21 June 2013.

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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