Daban and Jeffby (No 2) - [2013] FamCA 960

FAMILY COURT OF AUSTRALIA

DABAN & JEFFBY (NO 2)

[2013] FamCA 960

FAMILY LAW – CHILDREN – Where the matter proceeded as an undefended hearing – Consideration of s 61DA – Where the court determined, on the evidence, that the presumption of equal shared parental responsibility is rebutted – Where the court determined that it is in the best interests of the child for the mother to have sole parental responsibility for the child.

Family Law Act 1975 (Cth) s 61DA

Dundas & Blake [2013] FamCAFC 133

APPLICANT:

Ms D Daban

RESPONDENT:

Mr Jeffby

INDEPENDENT CHILDREN’S LAWYER:

Mr Ng

FILE NUMBER:

SYC

717

2013

DATE DELIVERED:

17 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

17 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Marsdens Law Group

SOLICITOR FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

Orders

That leave is granted to the legal representatives to inspect subpoena material produced by NSW Police.
That this matter shall proceed today on an undefended basis.
That the applicant mother shall have sole parental responsibility for the child R born … 2005 (“the child”).
That the child shall live with the mother.
That the child shall spend no time with the respondent father.
That the child, at no time, shall be in the company of:
a.   Ms J Jeffby, paternal aunt;
b.   Ms J Jeffby’s Partner;
c.   Ms C Jeffby, paternal grandmother; and
d.   Mr R Jeffby, paternal grandfather
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daban & Jeffby 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 SYDNEY

FILE NUMBER: SYC 717 of 2013

Ms D Daban

Applicant

And

Mr Jeffby

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
These are proceedings that were before me on 8 April 2013 for interim parenting orders. They have been listed today for a final hearing on an undefended basis.
The respondent Mr Jeffby was served with a copy of the Application for Final Orders along with copies of the affidavits of the applicant and her mother (that the applicant relies on in these proceedings), a Notice of Child Abuse, Family Violence or Risk of Family Violence and the appropriate court brochures required to be served in accordance with the rules. On 20 February 2013 the respondent signed an Acknowledgement of Service of those documents.
When the interim orders were made on 8 April 2013 notice of those orders was given to the…

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 Daban and Jeffby (No 2)

Details

AGLC: Daban and Jeffby (No 2) [2013] FamCA 960
Case: [2013] FamCA 960
Decision Date: 17 September 2013

CaseChat Overview and Summary

In the matter of Daban and Jeffby (No 2), Aldridge J of the Federal Circuit and Family Court of Australia considered a dispute concerning parental responsibility for a child. The proceedings were conducted on an undefended basis, with the applicant mother seeking specific orders regarding the child's living arrangements and contact with the respondent father and other family members.

The court was required to determine the appropriate orders for parental responsibility, the child's residence, and the extent of any time the child might spend with the respondent father. Furthermore, the court had to consider whether to grant leave for legal representatives to inspect subpoena material produced by NSW Police and to make final determinations on all outstanding applications and cross-applications before the court.

Aldridge J reasoned that the applicant mother should have sole parental responsibility for the child, and that the child should live with the mother. The court ordered that the child shall spend no time with the respondent father and shall not be in the company of specific paternal relatives, namely Ms J Jeffby (paternal aunt), Ms J Jeffby’s Partner, Ms C Jeffby (paternal grandmother), and Mr R Jeffby (paternal grandfather). Leave was granted for legal representatives to inspect subpoena material produced by NSW Police.

Consequently, all applications and cross-applications were dismissed, and all issues were removed from the Active Pending Cases List. The court also ordered that all subpoenaed material and exhibits be returned to their original custodians no earlier than fifty-six days from the date of the orders.

Orders

Orders of the court

That leave is granted to the legal representatives to inspect subpoena material produced by NSW Police.

That this matter shall proceed today on an undefended basis.

That the applicant mother shall have sole parental responsibility for the child R born … 2005 (“the child”).

That the child shall live with the mother.

That the child shall spend no time with the respondent father.

That the child, at no time, shall be in the company of:

a. Ms J Jeffby, paternal aunt;

b. Ms J Jeffby’s Partner;

c. Ms C Jeffby, paternal grandmother; and

d. Mr R Jeffby, paternal grandfather

That all applications and cross applications be and are hereby dismissed.

That all issues be removed from the Active Pending Cases List.

That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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.