Darwin and Sargent - [2011] FMCAfam 1164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DARWIN & SARGENT

[2011] FMCAfam 1164

FAMILY LAW – Parenting – international relocation – interim arrangements – issue of child’s schooling – whether or not Independent Children’s Lawyer should be appointed – child of mature years who wishes to relocate with the mother to Chile – issue of Australian passport without consent of a parent.

Australian Passports Act 2005 (Cth), s.11
Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 64B, 65DAA, 65Y, 68L, 68LA, 116C
Family Law Rules2004 (Cth), reg.8.02
Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001 (Cth), reg.13.10

Gitane & Velacruz [2007] FamCA 183; (2007) FLC 93-309
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Heard & De Laine;Crown Solicitor for the State of South Australia (Intervener) (1996) FLC 92-675; (1996) Fam LR 315
Jacobs & Vale (2008) FMCAfam 641
Lindon v Commonwealth of Australia(No.2) [1996] HCA 14; (1996) 136 ALR 251
Re JTT [1998] HCA 44; (1998) 195 CLR 184
Re K (1994) FLC 92-461; 17 Fam LR 537
P & P (1995) FLC 92-615; 19 Fam LR 1

Applicant:

MS DARWIN

Respondent:

MR SARGENT

File Number:

SYC 628 of 2011

Judgment of:

Monahan FM

Hearing date:

8 April 2011

Date of Last Submission:

8 April 2011

Delivered at:

Sydney

Delivered on:

12 April 2011

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Self-represented Litigant

Counsel for the Respondent:

Mr Blackah

Solicitors for the Respondent:

Not applicable

ORDERS

All extant applications be adjourned to this Court on 2 February 2012 at 10:00am for final hearing (“the Final Hearing”) with an estimated hearing time of two (2) days.
Pursuant to s.62G(2) of the Family Law Act 1975 (“the Act”), the parties, [X], born [in] 1994 (“the child”), the child’s half-siblings, [Y] and [Z] (“the child’s siblings”), and the Respondent’s partner attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia, Sydney Registry (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court by 25 January 2011.
AND FURTHER:
(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
(b)The parties comply with all reasonable directions and requests of the Family Consultant;
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court;
(d)In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations, then within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or restraining orders currently in force;
(e)The Applicant’s legal…

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 Darwin and Sargent

Details

AGLC: Darwin and Sargent [2011] FMCAfam 1164
Case: [2011] FMCAfam 1164
Decision Date: 12 April 2011

CaseChat Overview and Summary

The case of Darwin and Sargent involved the parents of a child, [X], born in 1994, and the child's half-siblings, [Y] and [Z]. The parties were before the Federal Magistrates Court of Australia, Sydney Registry, to address matters concerning the welfare and best interests of the child. The dispute primarily focused on parenting arrangements and the impact of these arrangements on the child's well-being.

The court was required to decide on the appropriate parenting orders under sections 60cc, 61da, and 65daa of the Family Law Act 1975. It needed to assess the evidence and recommendations from a Family Consultant, appointed to prepare a Family Report, on the welfare of the child and the best interests of the child in the context of the proposed parenting arrangements. The court also needed to determine whether the Family Consultant should be available for cross-examination at the final hearing and what steps were necessary to ensure timely and effective preparation of the Family Report.

The court directed that all applications be adjourned for a final hearing on 2 February 2012, with an estimated duration of two days. It mandated that the parties, the child, the child's siblings, and the Respondent’s partner attend a Family Consultant for the preparation of a Family Report, which should address relevant issues under the Act and any other matters considered important for the child's welfare. The court also outlined specific compliance requirements for the parties, including the timely delivery of relevant documents to the Family Consultant and confirmation of interview dates. Additionally, the court set strict deadlines for the filing and serving of further affidavits by both parties before the final hearing.

Orders

Orders of the court

All extant applications be adjourned to this Court on 2 February 2012 at 10:00am for final hearing (“the Final Hearing”) with an estimated hearing time of two (2) days.

Pursuant to s.62G(2) of the Family Law Act 1975 (“the Act”), the parties, [X], born [in] 1994 (“the child”), the child’s half-siblings, [Y] and [Z] (“the child’s siblings”), and the Respondent’s partner attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia, Sydney Registry (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court by 25 January 2011.

AND FURTHER:

(a) The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;

(b) The parties comply with all reasonable directions and requests of the Family Consultant;

(d) In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations, then within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or restraining orders currently in force;

(e) The Applicant’s legal representative and Respondent’s legal representative (or if unrepresented, the parties themselves) confirm with the Family Consultant no later than seven (7) days prior to the scheduled interviews that the interviews will proceed on the dates allocated (“the interviews”); and

(f) If either party proposes to have the Family Consultant available for cross-examination purposes at the Final Hearing, then such party’s legal representative will do the following:

(i) notify the relevant Family Consultant well in advance of the Final Hearing;

(ii) ensure that the Family Consultant is available to attend Court on the first morning of the Final Hearing at 11:00am; and

(iii) at least seven (7) days prior to the Final Hearing provide the Family Consultant with copies of all updated affidavit material, and any amended application or response filed after the interviews.

The Applicant make file and serve any further affidavits or other material to be relied upon by the applicant not later than 21 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.

The Respondent make file and serve any further affidavits or other material to be relied upon by the respondent not later than 14 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.

In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the

Background

Background to the litigation

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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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