Coleman and Hindle and Ors (Miscellaneous Applications) - [2009] FamCA 1039

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ORS (MISCELLANEOUS APPLICATIONS)

[2009] FamCA 1039

FAMILY LAW – CHILDREN – Vexatious Application – Interim orders – Stay of orders – Removal of Independent Children's Lawyer

Family Law Act 1975 (Cth)
Child Protection Act (Qld)

C & C [1996] FLC 92-651

Carlson & Bowden [2008] FamCA 1064
Dicosta v Dicosta (2008) FamCAFC 161
Goode & Goode (2006) FamCA 1346
Neil & Knott (1994) 68 ALJR 509
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197

APPLICANT:

Ms Coleman

FIRST RESPONDENT:

Ms Hindle

SECOND RESPONDENT:

Mr Hindle

THIRD RESPONDENT

Department of Communities (Child Safety Services)

INTERVENOR:

Mr Coleman

INDEPENDENT CHILDREN’S LAWYER:

Mr Carter

FILE NUMBER:	BRC	5431	of	2008
BRC	1353	of	2008

DATE DELIVERED:

23 October 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

22 – 23 October 2009

REPRESENTATION

THE APPLICANT:

Appearing in person

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Balzamo

SOLICITOR FOR THE 1^ST RESPONDENT:

Ms Hewitt, of Bridges Family Law Specialists

THE 2^ND RESPONDENT:

Appearing in person

COUNSEL FOR THE 3^RD RESPONDENT:

Mr Selfridge of Counsel

SOLICITOR FOR THE 3^RD RESPONDENT:

Crown Law, Brisbane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Carter of Carter Farquar Lawyers

INTERVENOR:

Appearing in person

Orders

AND UPON NOTING THAT, during the course of proceedings on 22 and 23 October 2009, a number of orders were made which are hereby consolidated

IT IS ORDERED THAT:

The Maternal Grandparents are granted leave to appear by telephone during the proceedings on 22 and 23 October 2009.
The Application to Intervene in Contravention proceedings by the Maternal Grandfather Mr Coleman is dismissed.
The Contravention Application, filed by the Maternal Grandmother on 14 February 2008 is dismissed.
The Amended Contravention Application, filed by the Maternal Grandmother on 6 July 2009 is dismissed.
The Maternal Grandfather is granted leave to intervene in the proceedings for parenting orders currently before the Court.
The Application in a Case, filed by the Maternal Grandmother on 18 August 2009 is dismissed.
The Application in a Case, filed by the Mother on 6 October 2009 is dismissed.
The Application in a Case, filed by the Maternal Grandmother on 16 June 2009 is dismissed.
The Application in a Case, filed by the Maternal Grandmother on 2 June 2009, for the Stay of the Orders of 29 April 2009, is dismissed.
The oral Application by the Maternal Grandmother that Murphy J disqualify himself is dismissed.
The Application in a Case, filed by the Maternal Grandmother on 6 August 2009 is dismissed.
The Response filed by the Independent Children’s Lawyer on 15 October 2009 is dismissed.
The Response filed by the Maternal Grandmother on 21 October 2009 is dismissed.
The Oral Application by the Maternal Grandmother for an adjournment of the interim parenting application is dismissed.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT:

Upon the cessation of the order made under a State child welfare law…

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

Case: [2009] FamCA 1039
Decision Date: 23 October 2009

CaseChat Overview and Summary

This matter came before Murphy J concerning various applications made by the maternal grandparents, Mr. Coleman and his wife, and the mother, in relation to parenting orders for two children. The proceedings involved a contravention application, applications to intervene, applications in a case, and an application for the judge to disqualify himself.

The court was required to determine a multitude of applications, including whether the maternal grandfather should be granted leave to intervene in proceedings for parenting orders, and whether various contravention applications and applications in a case, filed by the maternal grandmother, should be dismissed. Further issues included the dismissal of an application for a stay of previous orders and an application for the adjournment of an interim parenting application. The court also considered an oral application by the maternal grandmother for the judge to disqualify himself.

Murphy J dismissed the majority of the applications brought by the maternal grandmother, including her contravention applications and several applications in a case. The court granted the maternal grandfather leave to intervene in the parenting proceedings and allowed the maternal grandparents to appear by telephone. Crucially, the court made interim parenting orders, to take effect upon the cessation of a state child welfare law order, stipulating that the children would live with their mother, spend time with their father as agreed, and spend no time with their maternal grandparents. The court also ordered that the maternal grandparents were not to communicate with the children without further order, though the children would be permitted to contact them by card or letter if they expressed a desire to do so. The maternal grandmother's application for an adjournment and her oral application for the judge's disqualification were dismissed.

Orders

Orders of the court

AND UPON NOTING THAT, during the course of proceedings on 22 and 23 October 2009, a number of orders were made which are hereby consolidated

IT IS ORDERED THAT:

The Maternal Grandparents are granted leave to appear by telephone during the proceedings on 22 and 23 October 2009.

The Application to Intervene in Contravention proceedings by the Maternal Grandfather Mr Coleman is dismissed.

The Contravention Application, filed by the Maternal Grandmother on 14 February 2008 is dismissed.

The Amended Contravention Application, filed by the Maternal Grandmother on 6 July 2009 is dismissed.

The Maternal Grandfather is granted leave to intervene in the proceedings for parenting orders currently before the Court.

The Application in a Case, filed by the Maternal Grandmother on 18 August 2009 is dismissed.

The Application in a Case, filed by the Mother on 6 October 2009 is dismissed.

The Application in a Case, filed by the Maternal Grandmother on 16 June 2009 is dismissed.

The Application in a Case, filed by the Maternal Grandmother on 2 June 2009, for the Stay of the Orders of 29 April 2009, is dismissed.

10.

The oral Application by the Maternal Grandmother that Murphy J disqualify himself is dismissed.

11.

The Application in a Case, filed by the Maternal Grandmother on 6 August 2009 is dismissed.

12.

The Response filed by the Independent Children’s Lawyer on 15 October 2009 is dismissed.

13.

The Response filed by the Maternal Grandmother on 21 October 2009 is dismissed.

14.

The Oral Application by the Maternal Grandmother for an adjournment of the interim parenting application is dismissed.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT:

15.

Upon the cessation of the order made under a State child welfare law currently applicable in respect of the children X born … October 1996 and Y born … February 2001, the following orders shall take affect:-

15.1 the children shall live with their mother,

15.2 the children shall spend time with their father as agreed between the father and the mother,

15.3 the children shall spend no time with their maternal grandparents;

15.4 the mother and father have equal shared parental responsibility for the children;

15.5 the maternal grandparents not communicate with the children in any manner or by any means without further order of the court;

15.6 the children be permitted, and the mother encourage the children, to contact the maternal grandparents by card or letter at all such times as the children might express a desire to do so.

16.

The Oral Application by the maternal grandmother to stay, pending an appeal, the interim parenting orders and orders with respect to parental responsibility contained in the previous paragraph is dismissed.

Background

Background to the litigation

Full text does not contain this section.

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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