ZEELAN & ABNEY - [2020] FCCA 884

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZEELAN & ABNEY

[2020] FCCA 884

Catchwords:
FAMILY LAW – Interim care arrangements for a young child – competing allegations of family violence – more generalised allegations of violence – conceded volatile and conflictual relationship between the parents – whether time requires supervision – consideration of unacceptable risk – significant geographic distance between the parents – consideration of COVID 19 as regards the health of the mother and child – social distancing and isolation – father required to travel to and obtain accommodation in the area in which the child lives and at which time is to occur – time or changeovers occurring in a public place ill-advised and contraindicated – child’s best interests require certainty and safety.

Legislation:

Family Law Act 1975 (Cth), ss.69ZL, 60A, 61DA, 61C, 60CC

Cases cited:

Johns & Jasapas [2016] FamCA 471

Harridge & Harridge [2010] FamCA 445

Goode & Goode (2006) FLC 93-286

Applicant:

MR ZEELAN

Respondent:

MS ABNEY

File Number:

PAC 112 of 2020

Judgment of:

Judge Harman

Hearing date:

26 March 2020

Date of Last Submission:

26 March 2020

Delivered at:

Parramatta

Delivered on:

26 March 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Ahmad of AI Legal

Solicitors for the Respondent:

Ms Ahmed of Buttar Caldwell & Co

ORDERS

Pending further Order, the child X born … 2018 shall live with her mother Ms Abney.
Pending further Order, X shall spend time with her father Mr Zeelan at the father’s election, to be made prior to first period of time occurring, either:
(a)Each Saturday from 10.00am until 5.00pm; or
(b)Each alternate weekend from 1.00pm until 5.00pm Saturday and 10.00am until 5pm Sunday;
the father to communicate his election to the mother prior to close of business 27 March 2020.
For the purpose of the father’s time with X:
(a)The father shall obtain hotel, AirBnB or similar accommodation, at which time with the child can occur; and
(b)The mother shall cause the child to be delivered to the father at that accommodation at the commencement of each period and collected from the father at that accommodation at the conclusion of each period, that accommodation to be in or about the Town B area.
The father shall be entitled to communicate with X by FaceTime or similar video chat app each day that X is not in or to be in his care and between 5-5:30pm and, with respect to same, each parent shall ensure that the other is advised of:
(a)All relevant details to enable such communication to occur.
(b)The mother shall assist X in operating that equipment or in answering the call on behalf of X.
(c)Otherwise assist X in engaging in that communicating with her father.
The father shall refrain from consuming alcohol during or 12 hours prior to any period X is to be in his care.
Each parent shall advise the other forthwith and contemporaneous with the event of:
(a)Any diagnosis they or any member of their household receive of testing positive for…

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 ZEELAN & ABNEY

Details

AGLC: Zeelan and Abney [2020] FCCA 884
Case: [2020] FCCA 884
Decision Date: 26 March 2020

CaseChat Overview and Summary

In the matter of *Zeelan & Abney*, Judge Harman of the Family Court of Australia considered interim care arrangements for a young child, X, amidst competing allegations of family violence and a conceded volatile and conflictual relationship between the parents. The court was tasked with determining whether time between the father and child required supervision, considering the concept of unacceptable risk, the significant geographic distance between the parents, and the impact of COVID-19 on the health of the mother and child, including social distancing and isolation measures.

The court's reasoning focused on the paramount consideration of the child's best interests, which necessitated certainty and safety. Judge Harman determined that the father should be required to travel to and obtain accommodation in the area where the child resides for any periods of time. The court found that time or changeovers occurring in a public place were ill-advised and contraindicated given the circumstances.

Pending further order, the child X was ordered to live with her mother, Ms Abney. The father, Mr Zeelan, was granted the option to elect specific periods of time with X, either each Saturday or each alternate weekend, with the father to provide accommodation in or about the Town B area. The mother was to facilitate the child's delivery to and collection from this accommodation. The father was also granted daily FaceTime communication with X, and both parents were ordered to provide immediate notification of any COVID-19 diagnosis or significant illness concerning themselves, their households, or X. The matter was adjourned for further mention and directions, with the court noting the purpose of the adjournment was to facilitate the interim arrangements, encourage further negotiation, and prepare for a potential trial if issues remained unresolved. The parties were also directed to engage in Family Dispute Resolution.

Orders

Orders of the court

Pending further Order, the child X born … 2018 shall live with her mother Ms Abney.

Pending further Order, X shall spend time with her father Mr Zeelan at the father’s election, to be made prior to first period of time occurring, either:

(a) Each Saturday from 10.00am until 5.00pm; or

(b) Each alternate weekend from 1.00pm until 5.00pm Saturday and 10.00am until 5pm Sunday;

the father to communicate his election to the mother prior to close of business 27 March 2020.

For the purpose of the father’s time with X:

(a) The father shall obtain hotel, AirBnB or similar accommodation, at which time with the child can occur; and

(b) The mother shall cause the child to be delivered to the father at that accommodation at the commencement of each period and collected from the father at that accommodation at the conclusion of each period, that accommodation to be in or about the Town B area.

The father shall be entitled to communicate with X by FaceTime or similar video chat app each day that X is not in or to be in his care and between 5-5:30pm and, with respect to same, each parent shall ensure that the other is advised of:

(a) All relevant details to enable such communication to occur.

(b) The mother shall assist X in operating that equipment or in answering the call on behalf of X.

The father shall refrain from consuming alcohol during or 12 hours prior to any period X is to be in his care.

Each parent shall advise the other forthwith and contemporaneous with the event of:

(a) Any diagnosis they or any member of their household receive of testing positive for the coronavirus and, in the event that they or any member of their household or extended family test positive, they shall ensure the child is cared for by a person or persons who has not tested positive and/or has not come into contact with those persons who have tested positive; and

(b) Any significant illness, injury or hospitalisation relating to X to include sufficient authority and instruction to enable each parent to consult with any treating medical practitioner and to visit X if hospitalised.

The matter is adjourned for further mention and directions to 8 September 2020 at 11:45am.

Note: The purpose of the adjournment is to facilitate the above time and to enable the parties to engage in further negotiation with a view to limiting and resolving issues and, if all issues have not been resolved to finality the matter will then be moved towards trial as expeditiously as possible.

The father shall file and serve an Amended Application or Reply together with an Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Financial Statement so as to address the financial issues now joined by the Respondent, such material to be filed and served no later than close of business 22 May 2020.

10.

Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact a Family Dispute Resolution Practitioner agreed between them for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and subject to the assessment of suitability each party shall then:

(a) Attend at such times, dates and places as may be advised; and

(b) Pay such fees as may be charged;

to participate in and complete Family Dispute Resolution prior to the next Court event.

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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