Campbell and Bingham - [2010] FMCAfam 52

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMPBELL & BINGHAM

[2010] FMCAfam 52

FAMILY – Child aged seven years – parties have never lived with each other – child has lived with mother since birth – father seeks to change child’s residential arrangements – mother suffers from depression – evidence reveals child has been habitually truant from school – school counsellor’s opinion is that child is “educationally at risk” – best interests – need to protect child from abuse and neglect – weight to be given to child’s views – effect on child of change of circumstances – assessment of risk of child neglect – what surname should child bear – matters to be considered.

Family Law Act 1975, ss.60B, 60C, 60CC, 61DA, 65DAA, 68LA

Fooks v McCarthy (1994) FLC 92-450
Chapman & Palmer (1978) FLC 90-510
Beach & Stemmler (1979) FLC 90-692
H v W (1995) FLC92-598
R & R: Children’s wishes (1999) 25 Fam LR 712

Applicant:

MR CAMPBELL

Respondent:

MS BINGHAM

File Number:

ADC 5732 of 2007

Judgment of:

Brown FM

Hearing dates:

26 August & 21 December 2009

Date of Last Submission:

21 December 2009

Delivered at:

Adelaide

Delivered on:

27 January 2010

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Initially Ms Forde then in person

Solicitors for the Respondent:

Initially R J Cole & Partners and then in person

ORDERS

The father’s application in respect of the surname which the subject child should bear is dismissed.
The child [X Bingham] born [in] 2002 be independently represented in these proceedings and that pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X Bingham] born [in] 2002 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The independent children’s lawyer, when appointed, be at liberty to provide a copy of these reasons for judgment to the mother’s treating psychologist and general medical practitioner, as he or she considers appropriate.
The proceedings be adjourned for directions on 2 August 2010 at 9:30am, at which stage consideration will be given to fixing the matter for further contested hearing on a date prior to the conclusion of the academic year in 2010.

NOTATION:

It is implicit in the orders outlined above and in the reasons for judgment which follow that the arrangements for [X]’s care, as outlined in the orders of the court made on 23 July 2007, are to continue. In particular that [X] will remain living predominantly with the mother and her enrolment at…

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 Campbell and Bingham

Details

AGLC: Campbell and Bingham [2010] FMCAfam 52
Case: [2010] FMCAfam 52
Decision Date: 27 January 2010

CaseChat Overview and Summary

Campbell and Bingham concerned a dispute between the parents of a child born in 2002, regarding the surname the child should bear and other related issues. The matter was heard in the Family Court of Australia. The primary concern was the father's application for the child to bear his surname. Additionally, the court needed to decide on the appointment of an Independent Children's Lawyer to represent the child's interests and the continuation of the child's current living arrangements and school enrolment.

The court examined the importance of the child's wishes and the need for independent legal representation to ensure those wishes are considered. The judge noted the significance of the child's current living situation and educational stability, emphasising the importance of maintaining these arrangements pending further court direction. The court also considered the necessity of the Independent Children's Lawyer having access to relevant medical and psychological information to adequately represent the child.

The court dismissed the father's application regarding the child's surname, deciding instead that the child should be independently represented in the proceedings. The judge ordered the appointment of an Independent Children's Lawyer, directed the parties to facilitate this by providing necessary documents, and stipulated that the lawyer should promptly file a Notice of Address for Service. The court also allowed the Independent Children's Lawyer to share the judgment's reasons with the child's treating psychologist and general medical practitioner as appropriate. The proceedings were adjourned for directions, with consideration to be given to scheduling a further contested hearing before the end of the academic year in 2010.

The court's final orders included the dismissal of the father's surname application, the appointment of an Independent Children's Lawyer, the continuation of the child's current living and schooling arrangements, and the adjournment of the proceedings for further directions.

Orders

Orders of the court

The father’s application in respect of the surname which the subject child should bear is dismissed.

The child [X Bingham] born [in] 2002 be independently represented in these proceedings and that pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X Bingham] born [in] 2002 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

The independent children’s lawyer, when appointed, be at liberty to provide a copy of these reasons for judgment to the mother’s treating psychologist and general medical practitioner, as he or she considers appropriate.

The proceedings be adjourned for directions on 2 August 2010 at 9:30am, at which stage consideration will be given to fixing the matter for further contested hearing on a date prior to the conclusion of the academic year in 2010.

NOTATION:

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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