Bertram and Mall - [2010] FamCA 1195

FAMILY COURT OF AUSTRALIA

BERTRAM & MALL

[2010] FamCA 1195

FAMILY LAW – CHILDREN – With whom a child lives – Rice & Asplund issue

Family Law Act 1975 (Cth)

B & J [2009] FamCAFC 103
Marsden & Winch [2009] FamCAFC 152
In the Marriage of McEnearney (1980) FLC 90-866
Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383
Rice v Asplund (1979) FLC 90-725
SPS and PLS [2008] FamCAFC 16

APPLICANT:

Ms Bertram

RESPONDENT:

Ms Mall

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

2472

2010

DATE DELIVERED:

24 DECEMBER 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

14 DECEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR HALLIDAY

SOLICITOR FOR THE APPLICANT:

ROBERT HALLIDAY & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

MR WILSON

SOLICITOR FOR THE RESPONDENT:

MATTHEW OLDHAM

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

CE FAMILY LAWYERS

Orders

That the application filed 23 July 2010 and the response thereto filed 3 September 2010 are both dismissed.
That the mother pay the grandmother’s costs in a sum to be agreed and failing agreement as assessed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That all proceedings be removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Bertram & Mall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2472 of 2010

MS BERTRAM

Applicant

And

MS MALL

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The application of Ms Bertram (the mother) to alter parenting orders made in 2008 in favour of Ms Mall (the grandmother) concerning C (the child) born in March 2000 came before me in the Judicial Duty List on 14 December 2010.
The mother sought a discharge of existing orders and that the child live with her in a shared arrangement with the grandmother. She sought that each have seven nights per fortnight.
The grandmother’s position was that there should be no change to the orders made in 2008. She also sought that the mother’s application be dismissed at this preliminary stage.
I use the description “preliminary stage” cautiously because there is a litigious history culminating in the 2008 orders that needs to be considered.
There were final orders made by consent of the parties on 1 May 2008 under which the child was to live with the grandmother and spend time with her mother. It is relevant to note that the orders were made in a contested environment after three days of hearing. The dispute had been of some years standing and there were a number of family reports.
The child has lived with her grandmother for almost seven out of her ten years.
Nothing I have read suggests that that arrangement has not been properly carried out since the orders…

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 Bertram and Mall

Details

AGLC: Bertram and Mall [2010] FamCA 1195
Case: [2010] FamCA 1195
Decision Date: 24 DECEMBER 2010

CaseChat Overview and Summary

In the matter of *Bertram and Mall*, heard before Justice Cronin, the dispute concerned an application filed by the mother on 23 July 2010, and a response filed by the grandmother on 3 September 2010. The specific nature of the dispute is not detailed in the provided text, but it involved an application and a response, suggesting a contested family law matter.

The court was required to determine the merits of the application and the response filed by the parties. Implicitly, this involved considering the evidence and submissions presented by both the mother and the grandmother in relation to the underlying family law issue.

Justice Cronin dismissed both the application and the response. The court further ordered that the mother pay the grandmother's costs, to be agreed upon by the parties or assessed by the court if agreement could not be reached. The court also certified that it was reasonable to engage counsel to attend the proceedings and ordered that all proceedings be removed from the list of cases awaiting a hearing.

Orders

Orders of the court

That the application filed 23 July 2010 and the response thereto filed 3 September 2010 are both dismissed.

That the mother pay the grandmother’s costs in a sum to be agreed and failing agreement as assessed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

That all proceedings be removed from the list of cases awaiting a hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.