ZIEGLER & ZIEGLER - [2019] FCCA 636

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZIEGLER & ZIEGLER

[2019] FCCA 636

Catchwords:
FAMILY LAW – Interim arrangements for parenting of children aged 7 & 4 – allegations of abuse – assessment of risk – application of unacceptable risk test in context of interim hearing – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB; 4(1)(C); 11F; 60B; 60CA; 60CC; 68L

Cases cited:

Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
M & M (1988) FLC 91-979
B & B (1988) FLC 91- 957
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
N & S and the Separate Representative (1996) FLC 92-655

Applicant:

MS ZIEGLER

Respondent:

MR ZIEGLER

File Number:

DGC 3311 of 2018

Judgment of:

Judge Brown

Hearing date:

6 March 2019

Date of Last Submission:

6 March 2019

Delivered at:

Adelaide

Delivered on:

15 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Charman

Solicitors for the Applicant:

Adelta Legal

Counsel for the Respondent:

Ms Read

Solicitors for the Respondent:

Chloe Legal

Counsel for the Independent Children's Lawyer:

Ms Olsson

Solicitors for the Independent Children's Lawyer:

Silkwoods

ORDERS

Until further or other order

The children X born … 2011 and Y born … 2014 live with the mother.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of an urgent family report, such report to be released by 30 April 2019.
The family assessment to deal with the following matters:
a.to include interviews with the parties, the child and relevant family members;
b.observed interaction between the child and the parties;
c.any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
d.the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
e.any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a…

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.

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Details

Case: [2019] FCCA 636
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Brown considered interim parenting arrangements for two children, aged seven and four, amidst allegations of abuse. The dispute centred on the assessment of risk in the context of an interim hearing and the paramount consideration of the children's best interests.

The court was required to determine the appropriate interim orders for the children's living arrangements and to establish a process for assessing the allegations and the overall risk to the children's welfare. This involved considering the nature of an interim hearing, which is designed to provide temporary orders pending a final determination, and how the "unacceptable risk" test applies in such circumstances.

Judge Brown reasoned that at an interim stage, the court must make orders that protect the children while allowing for a thorough investigation of the allegations. The court applied the principles of Section 60CC of the Family Law Act 1975, which outlines the best interests of the child as the paramount consideration. To facilitate this assessment, the court ordered that the parties and children attend an urgent family report with a Regulation 7 practitioner. The report was directed to cover specific matters including interviews, observed interactions, the children's views, and relevant legislative considerations, with a view to informing the court's decision on the children's welfare and best interests.

The court ordered that the children live with the mother until further order. The proceedings were adjourned for further consideration upon the provision of the family report.

Orders

Orders of the court

Until further or other order

The children X born … 2011 and Y born … 2014 live with the mother.

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of an urgent family report, such report to be released by 30 April 2019.

The family assessment to deal with the following matters:

a. to include interviews with the parties, the child and relevant family members;

b. observed interaction between the child and the parties;

c. any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

d. the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

e. any other matters that the family assessor considers important to the welfare or best interests of the said child.

The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

a. a Children’s Court;

b. a child protection authority;

c. a State or Territory legal aid authority; and

d. a convener of any legal dispute resolution conference

NOTING:

A. At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

Further consideration of this matter is adjourned to 14 May 2019 at 10:00am.

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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