Butler and Hule - [2018] FamCA 338

FAMILY COURT OF AUSTRALIA

BUTLER & HULE

[2018 ] FamCA 338

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother has passed away and the proceedings should have been abated – Where the maternal grandmother was allowed to file an application in the proceedings – Where the maternal grandmother was granted leave to file an initiating application – Where it is plausible that the father has caused physical harm to the children – Where the father present an unacceptable risk of harm to the children – Where the children are to live with the maternal grandmother pending further orders.

Family Law Act 1975 (Cth) ss 60CC

B & B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Cotton & Cotton (1983) FLC 91-330
Feranti & Connor [2010] FamCA 71
Fitton & Kimble [2017] FCWA 106
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McCall & Clark (2009) FLC 93-405

SS & AH [2010] FamCAFC 13

APPELLANT:

Ms Butler

RESPONDENT:

Mr Hule

FILE NUMBER:

SYC

3774

2016

DATE DELIVERED:

28 March 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

28 March 2018

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Batey
SOLICITOR FOR THE APPELLANT:	Newnhams Solicitors

SOLICITOR FOR THE RESPONDENT:

Griffiths Family Law

SOLICITOR FOR THE INDEPENDENT Mr Fernie and Ms Weates CHILDREN’S LAWYER:

Orders

That leave be given to the maternal grandmother to file an initiating application in this matter, with herself as the applicant, in Court.
That documents filed in respect to the previous application filed in this matter, be deemed to be documents filed in these proceedings.
That any documents produced to the Court in respect to the previous proceedings, being matter number SYC3774 of 2016, be deemed to be documents produced to the Court, in respect to these proceedings.
That the father, forthwith, sign all documents, give all necessary authorisations for the release to the Family Court of Australia, or the independent children’s lawyer the documents held by the K Town Constabulary, and the Family Court of the United Kingdom, relating to the father’s criminal record, and proceedings relating to:
(a)       B, date of birth … 1992;
(b)       C, date of birth … 1994;
(c)       D, date of birth … 1995;
(d)       E, date of birth … 1998; and
(e)       F, also known as F.
Until Further Order;
That the children: G born … 2010, H born … 2012, and J born …2015, collectively referred to as “the children” live with the maternal grandmother; and
That the children spend time, and communicate with the father, as agreed.
That the father is to deliver the children to the maternal grandmother during the course of tomorrow, 29 March 2018, as agreed between the parties, and with the approval of the independent children’s lawyer and in the absence of agreement, by delivering the children to the second-floor of the Registry of the Family Court of Australia, in Goulburn Street, Sydney by…

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 Butler and Hule

Details

AGLC: Butler and Hule [2018] FamCA 338
Case: [2018] FamCA 338
Decision Date: 28 March 2018

CaseChat Overview and Summary

In the Family Court of Australia, McClelland J considered an application by the maternal grandmother, who sought leave to file an initiating application with herself as the applicant. The dispute concerned the welfare of several children, and the court was required to determine the appropriate interim arrangements for their living situation and contact with their father.

The court was asked to decide on the interim residence of the children, the father's obligation to provide documents relating to his criminal record and past proceedings concerning other individuals, and the terms of the children's time and communication with the father. The court also had to consider the transfer of documents from overseas authorities.

McClelland J ordered that the maternal grandmother be granted leave to file her application and that previous documents filed in related proceedings be deemed filed in the current matter. The father was ordered to forthwith sign all necessary documents and provide authorisations for the release of his criminal record and documents relating to past proceedings concerning individuals B, C, D, E, and F, held by the K Town Constabulary and the Family Court of the United Kingdom. The children were ordered to live with the maternal grandmother, and to spend time and communicate with the father as agreed. The father was directed to deliver the children to the maternal grandmother on 29 March 2018, with specific arrangements for handover if agreement was not reached. Costs were reserved.

Orders

Orders of the court

1. That leave be given to the maternal grandmother to file an initiating application in this matter, with herself as the applicant, in Court.

2. That documents filed in respect to the previous application filed in this matter, be deemed to be documents filed in these proceedings.

3. That any documents produced to the Court in respect to the previous proceedings, being matter number SYC3774 of 2016, be deemed to be documents produced to the Court, in respect to these proceedings.

4. That the father, forthwith, sign all documents, give all necessary authorisations for the release to the Family Court of Australia, or the independent children’s lawyer the documents held by the K Town Constabulary, and the Family Court of the United Kingdom, relating to the father’s criminal record, and proceedings relating to:

(a) B, date of birth … 1992;

(b) C, date of birth … 1994;

(d) E, date of birth … 1998; and

(e) F, also known as F.

Until Further Order;

5. That the children: G born … 2010, H born … 2012, and J born …2015, collectively referred to as “the children” live with the maternal grandmother; and

6. That the children spend time, and communicate with the father, as agreed.

7. That the father is to deliver the children to the maternal grandmother during the course of tomorrow, 29 March 2018, as agreed between the parties, and with the approval of the independent children’s lawyer and in the absence of agreement, by delivering the children to the second-floor of the Registry of the Family Court of Australia, in Goulburn Street, Sydney by 3.00 pm tomorrow, 29 March.; and

8. That costs be reserved.

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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