BENDER & MATTHEWS - [2018] FamCA 184

FAMILY COURT OF AUSTRALIA

BENDER & MATTHEWS

[2018] FamCA 184

FAMILY LAW – CHILDREN – Where final orders were made in 2013, 2014 and 2015 but another application is made by the mother to remove supervision restrictions. Where there are no changes of circumstances – Application dismissed.
Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Matthews & Bender (2015) FamCA 654
Neil v Nott (1994) 121 ALR 148
Poisat & Poisat [2014] FamCAFC 128; (2014) FLC 93-597
Rice and Asplund (1979) FLC 90-725:

APPLICANT:

Ms Bender

RESPONDENT:

Mr Matthews

FILE NUMBER:

MLC

3524

2008

DATE DELIVERED:

27 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 March 2018

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

That the mother’s application filed 26 October 2017 and the father’s response filed 5 December 2017 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bender & Matthews has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3524 of 2008

Ms Bender

Applicant

And

Mr Matthews

Respondent

REASONS FOR JUDGMENT

This parenting dispute between Ms Bender (the mother) and Mr Matthews (the father) has been going on for nearly ten years since they separated in 2007. Before that, they had lived together for about four years during which they married. In that time, M (the child) was born. She is now not far off her 13th birthday.

The present application

The present proceeding was begun as an application by the mother to change the existing parenting orders that have been extant for four years. As the mother said, she has spent seven months with a psychologist and is now ready to parent the child “amicably” with the father. She submitted she had “come a long way”, having regretted that she kept the father out of the child’s life which ultimately led to the child going to live with him under a court order in 2013. She said the child needed a mother because of her age.
The mother makes no secret of the fact that, as she sees it, there is no justice in the Family Court. She complained she was not allowed to give explanations for what she saw had happened but she also accused the father of “colluding” with a private contact supervision facilitator to preclude her from being with the child. There is no foundation for any of these complaints as I shall endeavour…

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 BENDER & MATTHEWS

Details

AGLC: BENDER & MATTHEWS [2018] FamCA 184
Case: [2018] FamCA 184
Decision Date: 27 March 2018

CaseChat Overview and Summary

In the matter of *Bender & Matthews*, the mother applied to the court seeking the removal of supervision restrictions that had been imposed by final orders made in 2013, 2014, and 2015. The father responded to this application. The case was heard by Cronin J.

The central legal issue before the court was whether the mother had demonstrated a sufficient change in circumstances to warrant the variation or removal of the existing supervision restrictions. The court was required to consider the impact of any alleged changes on the welfare of the children concerned.

Cronin J dismissed the mother's application, finding that there had been no material change in circumstances since the making of the final orders. The court applied the principle that, in the absence of a significant change in circumstances, final parenting orders are generally to be upheld to provide stability and certainty for the children. The existing restrictions were deemed to remain necessary and appropriate.

Consequently, the mother's application filed on 26 October 2017, and the father's response filed on 5 December 2017, were dismissed.

Orders

Orders of the court

That the mother’s application filed 26 October 2017 and the father’s response filed 5 December 2017 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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