BURTON & SLATER - [2017] FamCA 57

FAMILY COURT OF AUSTRALIA

BURTON & SLATER

[2017] FamCA 57

FAMILY LAW – CHILDREN – Best interests – Where the child enjoys a meaningful relationship with both parents – Where the mother concedes the child’s relationship with the father should be restored – Where an equal time arrangement would not be in the best interests of the child – Decided the child should have a single, stable home – Ordered the child live with the mother and spend substantial time with the father

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the matter is listed for final hearing – Where the mother conceded at commencement of the trial the child was probably not sexually abused by the father and the father posed no risk of any harm to the child – When the mother’s concessions altered the complexion of the case and the parties proposals for the child’s future – Where the mother acknowledged her compliance with previous orders had been poor and adjournment of proceedings would allow her to demonstrate her commitment to the implementation of orders restoring the child’s relationship with the father – Order that the proceedings be adjourned for eight months

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

APPLICANT:

Mr Burton

RESPONDENT:

Ms Slater

INDEPENDENT CHILDREN’S LAWYER:

Ms Marr, Legal Aid NSW Tamworth

FILE NUMBER:

NCC

2912

2013

DATE DELIVERED:

1 February 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

30, 31 January & 1 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Curtis

SOLICITOR FOR THE APPLICANT:

Leyden Legal

COUNSEL FOR THE RESPONDENT:

Mr Heazlewood

SOLICITOR FOR THE RESPONDENT:

Stacks Law Firm Tamworth

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Flintoff

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Marr, Legal Aid NSW Tamworth

Pending further orders, it is ordered

All former orders relating to the child B, born … 2009, (“the child”) are discharged.
Subject to compliance with Order 4 hereof, the mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.
Subject to compliance with Order 4 hereof, the child shall live with the mother.
The mother:
(a)Is restrained from causing or permitting any change to the child’s name;
(b)Shall do all such things necessary to continue receiving counselling from Dr C (or any other medical practitioner, psychologist, or therapist recommended by Drs C or D) for as long as is deemed reasonably necessary by those persons;
(c)Shall cause the child to be referred to and to attend upon Heather Vernon at E Town, NSW (or such other psychologist or therapist recommended by Dr D, with the consent of the father) for counselling for as long as is deemed reasonably necessary by those persons;
(d)Is restrained from causing or permitting the child to consult with any psychologist or therapist other than in accordance with Order 4(c) hereof;
(e)Shall keep…

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 BURTON & SLATER

Details

AGLC: BURTON & SLATER [2017] FamCA 57
Case: [2017] FamCA 57
Decision Date: 1 February 2017

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, constituted by Austin J, considered a dispute between a mother and a father concerning their child. The core of the disagreement revolved around the child's living arrangements and the nature and extent of time spent with each parent.

The court was required to determine whether an equal time arrangement for the child was in the child's best interests, given the existing meaningful relationship with both parents and the mother's concession that the child's relationship with the father should be restored. Furthermore, the court had to consider whether to grant an adjournment of the final hearing, particularly in light of the mother's concessions at the commencement of the trial regarding the father's alleged sexual abuse and risk of harm to the child, and her acknowledged poor compliance with previous orders.

Austin J reasoned that the child's best interests necessitated a single, stable home, and therefore ordered that the child live with the mother and spend substantial time with the father. The court also found that the mother's concessions significantly altered the case's complexion and the parties' proposals for the child's future. Acknowledging the mother's poor compliance with prior orders, the court determined that an adjournment of eight months would provide an opportunity for her to demonstrate commitment to implementing orders aimed at restoring the child's relationship with the father. The proceedings were accordingly adjourned for this period.

Orders