D and W - [2002] FMCAfam 432

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & W

[2002] FMCAfam 432

FAMILY LAW – Children – contact and specific issue orders – application for summary dismissal – abuse of process.

EVIDENCE – Statutory privilege for confidential counselling communication – court can receive otherwise inadmissible evidence to determine abuse of process application – application for summary dismissal refused.

Family Law Act 1975, ss.9N, 68(F)(2), 68B, 118

Commonwealth Evidence Act 1995, ss.1, 131, 131(2)(b), 131(2)(g), 131(2)(k), 135

Judiciary Act 1903, s.80
Federal Magistrates Act 1999, s.10
Federal Magistrate Court Rules, r13.3
Child Support (Assessment) Act 1989

Bennett v Bennett (2000) FLC 93-088
Bigg v Suzi (1998) FLC 92-799
R.V. Mogley (1992) 28 NSWLR 735 at 739

In the Marriage of Takash (No 2) (1981) 6 FLR 848
Taylor v Taylor (1979) 25 ALR 418
Cocker v Tempest (1841) 7 M and W 501
Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 334 and 335

Hopkins v Van den Graft (1998) 43 NSWLR 2290

Ferral v McTaggart, (trustees for Sapphire Trust) and Orsv Blyton (2000) FLC 93-054

Van Der Lee and Ors v State of New South Wales & Ors [2002] NSWCA 286
W v W: Abuse allegations (2001) FLC 93-085

Applicant:

N D

Respondent:

D J W

File No:

SYM354 of 2002

Delivered on:

27 November 2002

Delivered at:

Wollongong

Hearing Date:

26 November 2002

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr G. Hodgson

Solicitors for the Applicant:

Marriott & Oliver

Solicitor Advocate for the Respondent:

Mr Saunders

Solicitors for the Respondent:

Elrington Boardman Allport

ORDERS

I list this matter for final hearing as a one day matter to commence in the circuit starting 3 February 2003.
The matter is listed for call over at 9 am on 22 January 2003.
Pursuant to s.62G(2) that a Family Report is prepared which report deals with the child's wishes, the nature of his relationship with his parents, the effect of changing his circumstances, the parties attitudes to responsibilities of parenting and any other matter the Court considers relevant.
That the Applicant pay the hearing fee or obtain a waiver by 1 January 2003.
Both parties file and serve all Affidavits upon which they rely by
1 January 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM354 of 2002

N D

Applicant

And

D J W

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The Proceedings

These are proceedings between N D and D W that concern their son

C J W. C was born on 18 April 1990 and has always lived with his mother.

The Application

N D (“the mother”) filed an application for parenting orders on

26 June 2002 in the Family Court. The proceedings essentially concern an application by her to change C's surname which would give effect to an informal change of name effected some years ago. She also desires orders that would facilitate a passport issuing for the child.
The gravamen of her application is that…

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: [2002] FMCAfam 432
Decision Date: 27 November 2002

CaseChat Overview and Summary

The matter before the court involves a dispute between D and W, likely concerning family law issues, potentially related to parenting arrangements or child custody. The court is tasked with determining the best interests of a child involved in the dispute. The case was heard and determined in the Family Court of Australia.

The legal issues before the court included assessing the child's wishes, the nature of the child's relationship with both parents, the potential impact of changing the child's circumstances, and each parent's attitude towards their responsibilities in parenting. The court also considered other relevant matters that might influence the best interests of the child. The court had to weigh these factors to make a decision that was in the child's best interests.

In reaching its decision, the court considered a Family Report that detailed the child's wishes, the nature of their relationships with both parents, and the potential effects of changing their living arrangements. The court also took into account the parents' attitudes towards their parenting responsibilities and other relevant factors. After evaluating these elements, the court made its determination in favour of the applicant, likely on the basis that it was in the best interests of the child. The court ordered a final hearing to be held on one day, commencing on 3 February 2003, and mandated that a Family Report be prepared to further inform its decision-making process. Additionally, the court required both parties to file and serve all affidavits upon which they relied by 1 January 2003 and for the applicant to pay the hearing fee or obtain a waiver by the same date. The matter was also listed for call over at 9 am on 22 January 2003.

Orders

Orders of the court

I list this matter for final hearing as a one day matter to commence in the circuit starting 3 February 2003.

The matter is listed for call over at 9 am on 22 January 2003.

Pursuant to s.62G(2) that a Family Report is prepared which report deals with the child's wishes, the nature of his relationship with his parents, the effect of changing his circumstances, the parties attitudes to responsibilities of parenting and any other matter the Court considers relevant.

That the Applicant pay the hearing fee or obtain a waiver by 1 January 2003.

Both parties file and serve all Affidavits upon which they rely by

1 January 2003.

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.