Denfert and Avron - [2010] FamCA 245

FAMILY COURT OF AUSTRALIA

DENFERT & AVRON

[2010] FamCA 245

FAMILY LAW - CHILDREN - parenting orders - Magellan - child exposed to unacceptable risk of physical, emotional and intellectual harm with mother - live with father - sole parental responsibility

Family Law Act 1975 (Cth)

FATHER :

Mr Denfert

MOTHER:

Ms Avron

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

7099

2008

DATE DELIVERED:

15 February 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

15 February, 2010

REPRESENTATION

SOLICITOR FOR THE FATHER:

Altavilla Vessali

THE MOTHER:

No appearance

INDEPENDENT CHILDREN’S LAWYER

Maria Barbayannis & Co

Orders

That all previous parenting orders and injunctions which relate to the child … born … September, 1998 be discharged.
That the father have sole parental responsibility for the child.
That the child live with the father.
That the mother spend time and communicate with the child as agreed between the parties.
That in the event the child asks to communicate with the mother by telephone, the father do all things reasonably necessary to facilitate this.
That a sealed copy of this order be served on the mother by sending it by ordinary prepaid post addressed to her at :
(a)her address for service;
(b)…; and
(c)….
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
That the reasons for judgment this day be transcribed and copies be made available to the parties.
That pursuant to s.65DA(2) and s.62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES

(a)That it has found that, as at this date, any face to face contact the mother has with the child should be supervised; and
(b)Paragraph (4) of these orders does not require the father to agree to a proposal by the mother to spend time with the child if he, in his absolute discretion, believes it would impact adversely on the child, or expose her to physical and/or emotional abuse.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7099 of 2008

MR DENFERT

Father

And

MS AVRON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The background to this case has been rehearsed in numerous judgments, including judgments of mine delivered on 13 January, 2009, 9 February, 2009 and 18 March, 2009. In earlier judgments I have also briefly summarised…

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: [2010] FamCA 245
Decision Date: 15 February 2010

CaseChat Overview and Summary

In the matter of *Denfert and Avron*, Brown J of the Family Court of Australia considered a dispute concerning parenting orders for a child born in September 1998. The proceedings involved the father and the mother, with an independent children's lawyer also appointed.

The central legal issues before the court were the determination of the child's living arrangements, the allocation of parental responsibility, and the nature and extent of the mother's future contact with the child. The court was also required to consider the implications of any contravention of its orders.

Brown J reasoned that, given the circumstances, the father should have sole parental responsibility and the child should live with him. The court ordered that the mother's time and communication with the child be as agreed between the parties, with a specific provision for the father to facilitate telephone communication if requested by the child. The court also noted that any face-to-face contact between the mother and child should be supervised, and that the father retained discretion to refuse contact proposals if he believed they would adversely impact the child or expose her to abuse. The court discharged previous parenting orders and injunctions, and made provisions for the service of the new orders and the discharge of the independent children's lawyer.

Orders

Orders of the court

That all previous parenting orders and injunctions which relate to the child … born … September, 1998 be discharged.

That the father have sole parental responsibility for the child.

That the child live with the father.

That the mother spend time and communicate with the child as agreed between the parties.

That in the event the child asks to communicate with the mother by telephone, the father do all things reasonably necessary to facilitate this.

That a sealed copy of this order be served on the mother by sending it by ordinary prepaid post addressed to her at :

(a) her address for service;

(b) …; and

That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.

That the reasons for judgment this day be transcribed and copies be made available to the parties.

That pursuant to s.65DA(2) and s.62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES

(a) That it has found that, as at this date, any face to face contact the mother has with the child should be supervised; and

(b) Paragraph (4) of these orders does not require the father to agree to a proposal by the mother to spend time with the child if he, in his absolute discretion, believes it would impact adversely on the child, or expose her to physical and/or emotional abuse.

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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