Choate and Raymond - [2012] FMCAfam 1441

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHOATE & RAYMOND

[2012] FMCAfam 1441

FAMILY LAW – Parenting – order for no contact with mother – enmeshed relationship.

Applicant:

MS CHOATE

Respondent:

MR RAYMOND

File Number:

SYC 2546 of 2007

Judgment of:

Altobelli FM

Hearing date:

11 December 2012

Date of Last Submission:

11 December 2012

Delivered at:

Sydney

Delivered on:

11 December 2012

REPRESENTATION

Ms Choate in person

Mr Raymond in person

Independent Children’s Lawyer

Ms Power

ORDERS

The mother be restrained from having any form of communication with the child [X] born [in] 2000.
[X] is to spend time with the maternal grandmother as proposed by the father.
Any further evidence upon which parties intend to rely be filed and served no later than 24 August 2013.
The Independent Children’s Lawyer be granted leave to re-list on seven (7) days notice.
The Independent Children’s Lawyer be granted leave to issue such further subpoenas as the Independent Children’s Lawyer considers appropriate.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2546 of 2007

MS CHOATE

Applicant

And

MR RAYMOND

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

This case is about [X], born [in] 2000. [X] is 12 years, heading towards 13. The applicant is her mother, the father the respondent. [X] is represented by her own solicitor, Ms Power. The matter relating to [X] has a very, very long history, going back to 2007. The Independent Children’s Lawyer has filed a case outline document containing a short chronology, which goes for four or five pages. It is a short chronology because the matter has a very long history and I daresay the long chronology would take at least twice that long.
The history of this matter was well known to the parties, but for the purposes of these ex tempore reasons I will simply incorporate into these reasons the chronology that is contained in the case outlined. By way of recent history, the application came back before me as a result of the father’s application that was filed on 13 July 2012. He was, in effect, seeking a discharge of the final orders I made on 17 November 2011. The father’s application is supported by a number of affidavits sworn by him. In fact, there are three filed 24 October 2011 and 13 July 2012.
The mother’s response to that application is, in fact, contained in a contravention application that was filed 3 July 2012, supported by her affidavit sworn 2 July 2012. Whilst the mother’s opposition to the father’s case was by way of a contravention application, I am satisfied that for all practical purposes the issue in this case has been joined in the technical sense and the issue that I had to decide was whether to restrict [X]’s time with her mother and, if so, on what terms.
By the time the matter came…

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 Choate and Raymond

Details

AGLC: CHOATE & RAYMOND [2012] FMCAfam 1441
Case: [2012] FMCAfam 1441
Decision Date: 11 December 2012

CaseChat Overview and Summary

Choate and Raymond involved a dispute between the father and the mother regarding the care and communication with their child, born in 2000. The father sought orders to restrict the mother's communication with the child and to allow the child to spend time with the maternal grandmother. The mother opposed these orders. The case was heard in a relevant Australian court.

The legal issues before the court included whether the mother should be restrained from communicating with the child and whether the child should be allowed to spend time with the maternal grandmother as proposed by the father. The court also needed to consider the appropriateness of the Independent Children’s Lawyer re-listing the case and issuing further subpoenas.

The court decided that the mother should be restrained from any form of communication with the child, based on the evidence presented. It was determined that allowing the child to spend time with the maternal grandmother would be in the child's best interests, as proposed by the father. The court further ordered that any further evidence to be relied upon by the parties must be filed and served by a specific date, and granted the Independent Children’s Lawyer the necessary permissions to re-list the case and issue subpoenas.

No further orders were made beyond those listed in the orders section.

Orders

Orders of the court

The mother be restrained from having any form of communication with the child [X] born [in] 2000.

[X] is to spend time with the maternal grandmother as proposed by the father.

Any further evidence upon which parties intend to rely be filed and served no later than 24 August 2013.

The Independent Children’s Lawyer be granted leave to re-list on seven (7) days notice.

The Independent Children’s Lawyer be granted leave to issue such further subpoenas as the Independent Children’s Lawyer considers appropriate.

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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