Daplyn and Ness - [2012] FMCAfam 959

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAPLYN & NESS

[2012] FMCAfam 959

FAMILY LAW – Parenting – 10 year old boy – disrupted care history – removed from Mother at 5 months when Mother detained at [detention centre omitted] Detention Centre – long history of litigation – child in Father’s custody until 4 years of age – Father sought to reinstate his relationship with child after 3 year absence – expert questioned Father’s capacity – child strongly resistant to time with Father – order for no time with Father.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAC

Carone & Yantis [2011] FamCA 853

Applicant:

MR DAPLYN

Respondent:

MS NESS

File Number:

SYC 2459 of 2009

Judgment of:

Sexton FM

Hearing dates:

9, 10 and 11 July 2012

Date of Last Submission:

11 July 2012

Delivered at:

Sydney

Delivered on:

7 September 2012

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Brooks Howick Law

Counsel for the Independent Children’s Lawyer

Mr Cook

Solicitors for the Independent Children’s Lawyer

Hamish Cumming Family Lawyers

THE COURT ORDERS THAT:

The Mother have sole parental responsibility for the Child [X] born [in] 2001.
In the exercise of the Mother’s sole parental responsibility, the Mother keep the Father informed by email of any major long term decision she may make in relation to [X], to include such matters as education, health and religion.
[X] live with the Mother.
[X] continue to attend at Unifam for the purpose of individual counselling for any period in which Unifam will facilitate such attendance.
The Mother facilitate [X]’s attendance at Unifam pursuant to Order (4).
The Father be restrained from approaching [X] or from approaching within 100 metres of any school at which [X] attends and from approaching within 100 metres of [X]’s residence noting that this order is made for the personal protection of [X].
Should [X] at any time indicate directly to the Mother or through a third person to the Mother that he would like to communicate with, or spend time with the Father, the Mother do all things necessary to facilitate such communication or time.
The Father keep the Mother informed of a current postal address in order to facilitate Order (7).
The Mother ensure the Principal of [X]’s school and the Director of any out of school care or vacation facility [X] attends holds a sealed copy of these Orders.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2459 of 2009

MR DAPLYN

Applicant

And

MS NESS

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings…

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 Daplyn and Ness

Details

AGLC: Daplyn and Ness [2012] FMCAfam 959
Case: [2012] FMCAfam 959
Decision Date

CaseChat Overview and Summary

The case of Daplyn and Ness involved the Federal Magistrates Court of Australia in determining the parenting arrangements for a 10-year-old boy, X. The child had a disrupted care history, being removed from his mother at the age of 5 months when his mother was detained in a detention centre. The child had been in the care of his father until the father ceased all contact with him when he was 4 years old. The father sought to reinstate his relationship with the child after a three-year absence. The court was required to decide whether it was in the child's best interests to spend time with or communicate with the father and if so, what those arrangements should be.

The court considered various factors, including the child's resistance to spending time with the father, the father's capacity to parent, and the mother's capacity to care for the child. The court found that the child had a strong attachment to his mother, and his relationship with his father was seriously damaged and unlikely to be repaired in the foreseeable future. The court also found that the father lacked the capacity to parent the child in a way that would be psychologically sound and beneficial to the child.

Based on these findings, the court decided that it was not in the child's best interests to spend time with or communicate with the father. The court made orders for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the father to be restrained from approaching the child, the child's school, or the child's residence. The court also ordered that the mother facilitate the child's attendance at Unifam for individual counselling and keep the father informed of any major long-term decisions she made in relation to the child. The court emphasized that the absence of an order for the father's communication with the child did not prevent him from writing to the child in the future, but advised him to seek advice from a qualified therapist before doing so.

Orders