BRICE & BRICE - [2010] FamCA 984

FAMILY COURT OF AUSTRALIA

BRICE & BRICE

[2010] FamCA 984

FAMILY LAW – CHILDREN – lengthy hearing 2006 – application for dismissal – relying upon principals set out in Rice v Asplund – father’s application in respect of parenting dismissed

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725
Cook & Tracey [2008] FamCA 74

Wickham v Jones [2010] FamCA 837

McIntosh J, Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010

APPLICANT:

Mr Brice

RESPONDENT:

Ms Brice

FILE NUMBER:

CSC

329

2007

DATE DELIVERED:

5 November 2010

PLACE DELIVERED:

Hobart

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

20 & 22 September 2010

REPRESENTATION:

COUNSEL FOR THE APPLICANT:

Mrs Benson

SOLICITOR FOR THE APPLICANT:

Farrellys Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jacobs

SOLICITOR FOR THE RESPONDENT:

The Law Office

Orders

The father’s application in respect of equal shared parental responsibility is dismissed.
The father’s parenting applications in respect of the child F is dismissed.
The parties are given leave to file evidence in respect of the following issues (“the issues”):-
a.Whether the chid F should be entitled to express his own views as to the time he spends with and how he communicates with the father.
b.Whether the time the children V and P spend with the father be increased to alternate weekends (from after school Friday until the commencement of school Monday) including overnight time.
c.The time V and P should spend with the father over school holidays and other special occasions.
d.Whether the father’s passport ought to be retained by the Court.
All other pending applications between the parties are dismissed save and except the respective parties’ costs applications.
The interests, in these proceedings, of the children V, P and F be independently represented by a lawyer and it is requested that the Legal Aid Commission of Queensland arrange for an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or make copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Cairns.
Forthwith upon the appointment by the said Legal Aid Commission of Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
In the event the Independent Children’s Lawyer seeks a contribution for costs on behalf of the mother such application is to be determined by agreement or by application to the Court.
An updated Family Report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services, such appointments being made in the first two weeks of August 2011 and the report to be completed by the second week 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

AGLC: BRICE & BRICE [2010] FamCA 984
Case: [2010] FamCA 984
Decision Date: 5 November 2010

CaseChat Overview and Summary

In the Family Court of Australia, Benjamin J heard applications between a father and mother concerning their children, V, P, and F. The father's applications for equal shared parental responsibility and specific parenting arrangements for child F were dismissed. However, the court granted leave for the parties to file evidence on several key issues, including the child F's right to express views on contact with the father, an increase in time V and P spend with the father, arrangements for holidays and special occasions, and the retention of the father's passport.

The court was required to determine whether to grant the father's applications for increased time with V and P, and whether child F should have a say in his communication and time with the father. Further, the court needed to consider the father's passport and the overall parenting arrangements for the children. The court also addressed the representation of the children's interests and the preparation of an updated Family Report.

Benjamin J dismissed the father's applications for equal shared parental responsibility and specific parenting orders for child F. The court then outlined a detailed procedural pathway for the remaining issues, including the filing of evidence by both parties, the appointment of an Independent Children's Lawyer, and the preparation of a Family Report. The father was ordered to surrender his passport to the Registrar, to be released only with the mother's consent or a court order. The proceedings were adjourned for a future hearing.

Orders

Orders of the court

The father’s application in respect of equal shared parental responsibility is dismissed.

The father’s parenting applications in respect of the child F is dismissed.

The parties are given leave to file evidence in respect of the following issues (“the issues”):-

a. Whether the chid F should be entitled to express his own views as to the time he spends with and how he communicates with the father.

b. Whether the time the children V and P spend with the father be increased to alternate weekends (from after school Friday until the commencement of school Monday) including overnight time.

c. The time V and P should spend with the father over school holidays and other special occasions.

d. Whether the father’s passport ought to be retained by the Court.

All other pending applications between the parties are dismissed save and except the respective parties’ costs applications.

The interests, in these proceedings, of the children V, P and F be independently represented by a lawyer and it is requested that the Legal Aid Commission of Queensland arrange for an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or make copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Cairns.

Forthwith upon the appointment by the said Legal Aid Commission of Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

In the event the Independent Children’s Lawyer seeks a contribution for costs on behalf of the mother such application is to be determined by agreement or by application to the Court.

An updated Family Report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services, such appointments being made in the first two weeks of August 2011 and the report to be completed by the second week of September 2011.

10.

For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents.

11.

The Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

12.

The parties shall attend and ensure that the children attend all necessary appointments for the preparation of the Family Report.

13.

The question of the report writer can be determined by me at an interim hearing listed for mention at Cairns in the May 2011 sittings.

14.

All outstanding costs application be dismissed unless there is an application to relist such application or applications within the time prescribed by the Rules after the making of these orders.

15.

The father pay the hearing fee or seek remission of the hearing fee (and pay the reduced remission fee) on or before 4.00pm 30 June 2011 and in the event the father does not pay the hearing fee by that date or apply to have the fee remitted or pay the balance of the reduced fee if part is remitted, the father’s application is summarily dismissed.

16.

The father file and serve an affidavit in respect of the events effecting the issues by himself, his partner and Mr Y on or before 4.00pm 30 June 2011. The father is entitled to rely upon the affidavits he has previously filed in these proceedings since the commencement of proceedings in July 2010 subject to the father providing written notice to the mother’s legal representative and the Independent Children’s Lawyer of his intention to rely on that material on or before 30 June 2011.

17.

The father be otherwise restrained from filing further material in respect of this application without the leave of the Court. If the father files no further affidavit by himself on or before 4.00pm 30 June 2011 then his application is summarily dismissed.

18.

The mother be granted leave to file an affidavit by herself and her partner and specify any of her affidavits already filed in these proceedings since July 2010 upon which she relies on or before 4.00pm 29 July 2011.

19.

These proceedings be listed for a two day hearing before me in the September/October 2011 circuit at Cairns and to be included in the call-over for such circuit.

20.

Leave be given to the parties and the Independent Children’s Lawyer to apply to have the matter relisted on the giving of fourteen (14) days notice to the Court.

UNTIL FURTHER ORDER

21.

The father is required to surrender all passports to the Registrar of the Family Court at Cairns. Such passport to be released to the father with the written consent of the mother or as otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).

22.

This matter be removed from the list of cases requiring determination.

IT IS CERTIFIED

23.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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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