CORELLI & GUNTHER - [2015] FamCA 81

FAMILY COURT OF AUSTRALIA

CORELLI & GUNTHER

[2015] FamCA 81

FAMILY LAW – CHILDREN - Parental responsibility - where hearing proceeded on an undefended basis after mother failed to participate – limited information available in relation to father’s personal functioning - consideration of family assessment report - whether proper to make orders in the circumstances – orders cannot be made “by default” in this jurisdiction - father retains parental responsibility pursuant to s 61C - best interests of the child – no orders made for parental responsibility.

Family Law Act 1975 (Cth) s 60CA, 61B, 61C, 61D, 61DA, 65D, 65DAA
Family Law Rules 2004 (Cth) r 11.02

Allesch v Maunz (2000) 203 CLR 172
Andrew & Delaine [2009] FamCAFC 182
Goode & Goode (2006) FLC 93-286
Haydon & Bennett and Anor [2012] FamCAFC 89
Lanceley & Lanceley (1994) FLC 92-491
Marvel & Marvel (2010) 43 Fam LR 348
McMahon & McMahon (1976) FLC 90-128
Newlands & Newlands (2007) 37 Fam LR 103
Pavli & Beffa [2013] FamCA 144
Sexton & Sexton [2012] FamCAFC 218
VR v RR (2002) FLC 93-099

APPLICANT:

Mr Corelli

RESPONDENT:

Ms Gunther

INDEPENDENT CHILDREN’S LAWYER:

Georgina Parker Lawyers

FILE NUMBER:

ADC

2632

2013

DATE DELIVERED:

19 February 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

H Lawyers & Mediators

THE RESPONDENT:

No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Georgina Parker Lawyers

Orders

That all previous parenting orders are discharged.
That the mother be restrained and an injunction granted restraining her from removing the child from the father’s care.
The father’s Amended Initiating Application filed 25 November 2013 is dismissed and the matter removed from the active pending cases list.
All extant interim applications are dismissed.
That the order for the appointment of the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Corelli & Gunther has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2632 of 2013

Mr Corelli

Applicant

And

Ms Gunther

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Initiating Application filed 25 November 2013 the father seeks parenting orders in respect of the infant child B, born in 2012, including orders for sole parental responsibility with the child to live with him and spend supervised time with the mother as agreed between the parties. The father also seeks an order of this Court that he be nominated as the father on the child’s birth certificate.
By Response filed 30 August 2013 the mother opposes the father’s application and seeks orders for sole parental responsibility with the child to live with her. The mother makes no provision for the child to spend time with the father.
Ultimately, the mother failed to participate in proceedings and the child has…

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

AGLC: CORELLI & GUNTHER [2015] FamCA 81
Case: [2015] FamCA 81
Decision Date: 19 February 2015

CaseChat Overview and Summary

In the matter of *Corelli & Gunther*, Berman J of the Federal Circuit Court of Australia considered a dispute between the mother and father concerning their child. The specific nature of the dispute, beyond the parenting orders and injunction sought, is not detailed in the provided text.

The court was required to determine whether to discharge existing parenting orders, whether to grant an injunction restraining the mother from removing the child from the father's care, and the disposition of the father's amended initiating application and other extant interim applications. The court also had to consider the discharge of an order for the appointment of an Independent Children's Lawyer.

Berman J ordered the discharge of all previous parenting orders. Crucially, an injunction was granted restraining the mother from removing the child from the father’s care. The father's amended initiating application was dismissed, and the matter was removed from the active pending cases list. Furthermore, all extant interim applications were dismissed, and the order for the appointment of the Independent Children’s Lawyer was discharged.

Orders

Orders of the court

That all previous parenting orders are discharged.

That the mother be restrained and an injunction granted restraining her from removing the child from the father’s care.

The father’s Amended Initiating Application filed 25 November 2013 is dismissed and the matter removed from the active pending cases list.

All extant interim applications are dismissed.

That the order for the appointment of the Independent Children’s Lawyer be discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.