Adams & Adams (No. 8 - Final Orders) - [2007] FamCA 1083

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS (No 8 – Final Orders)

[2007] FamCA 1083

FAMILY LAW - CHILDREN – Parenting orders for bi-racial male child aged 4 years – Unremitting conflict between parents – Husband’s anti-social and provocative behaviour generally and his unacceptable conduct to wife assessed as having negative impact on child – No benefit, in fact, harm to child of having meaningful relationship with husband – Husband to have no time or communication with child for time being – Discussion of change necessary before involvement by husband with child likely to be of benefit to child – Responsibility to wife

Family Law Act 1975 (Cth)
Family Law (Shared Parental Responsibility) Act 2006
Crimes (Family Violence) Act 1987
Children & Young Persons Act 1989
Crimes Act 1958 (Vic)

Re: H & Ors (1996) 1 All ER 1
McCoy & Wessex [2007] FamCA 489
L v T (1999) FLC 92-875
R & R: Children's wishes (2000) FLC 93-000
H & W (1995) FLC 92-598
B and B: Family Law Reform Act (1997) FLC 92-755
Rice v Asplund (1979) FLC 90-725
KB & TC (2005) FLC 93-224

APPLICANT:

Mrs Adams

RESPONDENT:

Mr Adams

INDEPENDENT CHILDREN’S LAWYER:

Donald S Lampe

FILE NUMBER:

MLF

2456

2006

DATE DELIVERED:

17 September 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22 & 23 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Combes

SOLICITOR FOR THE APPLICANT:

Jane Baldwin

THE RESPONDENT:

In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr R. Hoult

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Donald S Lampe

Orders

That all previous parenting orders be and are hereby discharged.
That the child, a son, born in July 2003 live with the wife.
That the wife have sole parental responsibility for the child.
That the husband not spend any time with or communicate with the child.
That until … July 2011 the wife advise the Registry Manager of this Registry of the Court of the residential address of the child and provide the Registry Manager with prior notice in writing of any change thereto.
That until … July 2011 the husband advise the Registry Manager of this Registry of the Court of his residential and provide the Registry Manager with prior notice in writing of any change thereto.
That the addresses provided pursuant to the preceding two paragraphs not be released without the prior order of a Judge of this Court.
That the husband, his servants or agents not remove the child, a son born in July 2003 from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.
That the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until further Order of the Court.

10.That the husband be…

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 Adams & Adams (No. 8 - Final Orders)

Details

AGLC: Adams & Adams (No. 8 - Final Orders) [2007] FamCA 1083
Case: [2007] FamCA 1083
Decision Date: 17 September 2007

CaseChat Overview and Summary

In proceedings before Bennett J, the court considered final parenting orders concerning a child born in July 2003. The dispute involved the wife and the husband, with the court tasked with determining the future living arrangements and parental responsibilities for the child.

The court was required to determine a range of issues, including the discharge of all previous parenting orders, the primary residence of the child, the allocation of sole parental responsibility, and the extent of contact and communication between the husband and the child. Furthermore, the court addressed measures to prevent the child's removal from Australia, including the involvement of the Australian Federal Police and the Department of Immigration & Citizenship, and the process for issuing passports. The court also considered the matter of costs associated with the proceedings.

In its reasoning, the court discharged all prior parenting orders. It ordered that the child live with the wife and that the wife have sole parental responsibility. Crucially, the court ordered that the husband have no contact with or communication with the child. To prevent the child from leaving Australia, the court directed that the husband not remove the child from the Commonwealth and requested the Australian Federal Police to place the child on the Airport Watch List. The husband was also restrained from applying for a passport for the child, and the court requested the government of the Republic of South Africa not to issue a passport for the child to the husband or on his application. The court also made directions regarding the filing and service of submissions concerning costs.

Orders

Orders of the court

That all previous parenting orders be and are hereby discharged.

That the child, a son, born in July 2003 live with the wife.

That the wife have sole parental responsibility for the child.

That the husband not spend any time with or communicate with the child.

That until … July 2011 the wife advise the Registry Manager of this Registry of the Court of the residential address of the child and provide the Registry Manager with prior notice in writing of any change thereto.

That until … July 2011 the husband advise the Registry Manager of this Registry of the Court of his residential and provide the Registry Manager with prior notice in writing of any change thereto.

That the addresses provided pursuant to the preceding two paragraphs not be released without the prior order of a Judge of this Court.

That the husband, his servants or agents not remove the child, a son born in July 2003 from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.

That the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until further Order of the Court.

10. That the husband be and is hereby restrained from causing, permitting or suffering any application to be made for passport to issue for the said child.

11. I DIRECT that a copy of this Order be sent by the Registry Manager of the Court to the Department of Immigration & Citizenship to be forwarded to the government of the Republic of South Africa with a request that the Republic of South Africa not issue a passport for the child … born in July 2003 to the husband or on his application.

12. That subject to any further order of the court, paragraph 3 of the Order made on 20 February 2007 continue in full force and effect until 23 November 2007 or my determination of any application of, or with respect to, costs of these proceedings.

13. That any party wishing to seek costs of or incidental to the parenting proceedings file and serve submissions in writing to that effect by not later than 5 October 2007 including, but not limited to, an itemised memorandum of the costs sought calculated in accordance with the scale set out in the Family Law Rules 2004.

14. In the event that any party seeks costs against another party, the party against whom costs are sought file and serve any written submissions in opposition thereto by not later than 26 October 2007.

15. That any submissions in relation to costs be limited to five (5) A4 pages in length excluding any memorandum of costs on the basis that I will not give consideration to the sixth and any successive pages of any submission.

16. I DIRECT that my Associate review the file on 2 November 2007 to ascertain whether there is any dispute in relation to costs and, if there is, to draw same to my attention. If there is no outstanding application for costs, my Associate re-list the matter as soon as practicable for a discharge of the Order made on 20 February 2007.

17. I DIRECT that a copy of these reasons for judgment be sent to the following persons, it being the case that either that person and / or someone else from the organisation by which they are employed were required to give evidence at the trial and I have made findings as to the propriety of the witness in his/ her professional capacity:-

a) Ms M of Department of Human Services;

b) Ms L, N Contact Centre;

c) Leading Senior Constable P, Victoria Police;

d) Officer in charge, Family Law Branch, Australian Federal Police;

e) Mr X, family consultant.

18. That the order for the appointment of the Independent Children’s Lawyer be discharged forthwith.

19. That the Court certifies that it was reasonable to employ an advocate.

20. That all extant Applications be dismissed and removed from the List of Cases awaiting finalisation.

21. That subject to any further Order of the Court, exhibits and subpoenaed documents be returned to the persons producing same at the expiration of the appeal period or the determination of any appeal, if an appeal is filed.

22. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

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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