Andrews and Nicola (No. 2) - [2014] FamCA 167

FAMILY COURT OF AUSTRALIA

ANDREWS & NICOLA (NO. 2)

[2014] FamCA 167

FAMILY LAW – CHILDREN - Wife excluded from son’s life because of her disruptive behaviour – Long history of litigation where husband has always been the primary carer – Supervised time rejected as unhelpful – Child resistant to any relationship – Conflictual parental relationship unlikely to change – Sexual abuse allegations concerning another child found to be without foundation.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Andrews

RESPONDENT:

Ms Nicola

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4394

2008

DATE DELIVERED:

25 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Jenkinson

SOLICITOR FOR THE APPLICANT:

Trapski Family Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

Orders

The husband have sole parental responsibility for K born … January 2004.
That K live with the husband.
That the wife be restrained by injunction from contacting or communicating with K except by the form of presents, cards and letters delivered to the husband at such times as the wife sees fit.
That the husband give to K the items referred to in paragraph 3 unless he decides that they contain inappropriate messages likely to destabilize K’s emotional well-being.
That K be permitted to travel internationally without the consent of the wife.
That the Minister be at liberty to issue a passport for K without requiring the consent of the wife.
That the Registrar return K’s passport to the husband forthwith.
Save as to issues of costs, all extant applications are dismissed.
That the Independent Children’s Lawyer is discharged.
That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrews & Nicola (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 4394 of 2008

Mr Andrews

Applicant

And

Ms Nicola

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 29 July 2010, Burchardt FM (as his Honour then was) made final parenting orders concerning the child R then aged 10 and the child K then aged 6.
His Honour ordered that both children live with their father Mr Andrews (“the husband”) and that he have sole parental responsibility for them. His Honour ordered the time between the children and Ms Nicola (“the wife”) be mostly alternate weekends from after school on Friday to the commencement of school on the following Tuesday morning along with one half of…

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: [2014] FamCA 167
Decision Date: 25 March 2014

CaseChat Overview and Summary

In the matter of *Andrews and Nicola (No. 2)*, Cronin J of the Family Court of Australia considered a dispute between a husband and wife concerning the parental responsibility and living arrangements for their child, K. The proceedings involved applications relating to K's welfare and the parents' interactions with their child.

The court was required to determine several critical issues, including who should have sole parental responsibility for K, where K should live, and the extent to which the wife should be permitted to contact or communicate with K. Further, the court had to consider K's ability to travel internationally and the process for issuing a passport for K, including the return of K's existing passport. The court also had to address the discharge of the Independent Children’s Lawyer and the dismissal of extant applications.

Cronin J applied the paramount consideration of the child's best interests in making orders regarding K's upbringing and welfare. The court ordered that the husband have sole parental responsibility for K and that K live with the husband. The wife was restrained by injunction from contacting or communicating with K, save for the delivery of presents, cards, and letters to the husband for K, with the husband retaining discretion to withhold such items if deemed likely to destabilise K's emotional well-being. K was permitted to travel internationally without the wife's consent, and the Minister was granted liberty to issue a passport for K without the wife's consent. The Registrar was ordered to return K's passport to the husband. All extant applications, save for costs, were dismissed, and the Independent Children’s Lawyer was discharged. The orders included a Fact Sheet detailing obligations, consequences of contravention, and assistance resources, pursuant to sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

The husband have sole parental responsibility for K born … January 2004.

That K live with the husband.

That the wife be restrained by injunction from contacting or communicating with K except by the form of presents, cards and letters delivered to the husband at such times as the wife sees fit.

That the husband give to K the items referred to in paragraph 3 unless he decides that they contain inappropriate messages likely to destabilize K’s emotional well-being.

That K be permitted to travel internationally without the consent of the wife.

That the Minister be at liberty to issue a passport for K without requiring the consent of the wife.

That the Registrar return K’s passport to the husband forthwith.

Save as to issues of costs, all extant applications are dismissed.

That the Independent Children’s Lawyer is discharged.

10.

That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

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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