Docklands and Marshman - [2010] FamCA 611

FAMILY COURT OF AUSTRALIA

DOCKLANDS & MARSHMAN

[2010] FamCA 611

FAMILY LAW – CHILDREN – Best interests of the child

Family Law Act 1975 (Cth): s 60CC , s 61DA(2)

APPLICANT:

Mr Docklands

RESPONDENT:

Ms Marshman

INDEPENDENT CHILDREN’S LAWYER:

Mrs G. Yeend, Evans Yeend Family Lawyers

FILE NUMBER:

CAC

398

2010

DATE DELIVERED:

6 July 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

6 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms L. Keogh

SOLICITOR FOR THE RESPONDENT:

KJB Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mrs A. Evans

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Evans Yeend Family Lawyers

Orders

IT IS ORDERED:

The initiating application filed by the father in the Family Law Courts on 10 July 2009 is dismissed.
All existing orders about the time that K, born … August 2002, spends with his father are discharged.
By way of more abundant caution only I affirm and confirm Orders 1 and 2 made by me on 18 March 2009, namely that Ms Marshman, K’s mother, have sole parental responsibility for K, born … August 2002, and further that K will live with his mother.
K will spend no time with his father, nor communicate with his father, nor will his father communicate with him and any orders to that effect previously made by Federal Magistrate Neville are discharged.
All orders relating to arrangements that the parties may be required to make in relation to their attending upon D Contact Centre for the purpose of arranging some form of time between K and his father are discharged. Otherwise the application of the father relating to K is removed from the pending cases list and is finalised.
The matter relating to the division of property of the parties is to be the subject of a Conciliation Conference on 7 September 2010 and will proceed on that day in accordance with the directions previously given.
The appointment of Mrs Yeend as the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 398 of 2009

MR DOCKLANDS

Applicant

And

MS MARSHMAN

Respondent

REASONS FOR JUDGMENT

By way of initiating application filed by Mr Docklands (‘the father’) on 10 July 2009, the father sought the following orders on a final orders basis:[1]
a)Have contact with my son [K] by Phone, letters & internet;
b)Have my son with me for half the time during all school breaks;
c)Attend his school & receive correspondence ie reports, concerts & parent/teacher nights.
d)Allow access & contact with [Docklands] Family Grandparents;
e)Every 2^nd year have [K] spend Christmas/Boxing Day, Easter & [K’s] Birthday;
f)Be available to attend other important [Docklands] family occasions eg. Funerals, Births, 75^th/80^th Birthday Occasions, Also marriages.
[1] Initiating application, filed…

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 Docklands and Marshman

Details

AGLC: Docklands and Marshman [2010] FamCA 611
Case: [2010] FamCA 611
Decision Date: 6 July 2010

CaseChat Overview and Summary

In the Family Law Courts, the father sought orders concerning his time with K, born in August 2002. The mother, Ms Marshman, was the respondent. The dispute concerned the arrangements for K's time with his father and parental responsibility.

The court was required to determine whether to grant the father's application for time with K, and consequently, what orders should be made regarding parental responsibility, K's living arrangements, and any communication between K and his father. The court also considered the discharge of existing orders, including those made by Federal Magistrate Neville and the appointment of an Independent Children’s Lawyer.

His Honour, Faulks DCJ, dismissed the father's initiating application. The court discharged all existing orders concerning the father's time with K and affirmed previous orders granting the mother sole parental responsibility and that K live with his mother. Furthermore, the court ordered that K would spend no time with his father, and neither party would communicate with K or each other in relation to K. Orders relating to supervised contact were also discharged. The matter of property division was adjourned for a conciliation conference.

Orders

Orders of the court

IT IS ORDERED:

The initiating application filed by the father in the Family Law Courts on 10 July 2009 is dismissed.

All existing orders about the time that K, born … August 2002, spends with his father are discharged.

By way of more abundant caution only I affirm and confirm Orders 1 and 2 made by me on 18 March 2009, namely that Ms Marshman, K’s mother, have sole parental responsibility for K, born … August 2002, and further that K will live with his mother.

K will spend no time with his father, nor communicate with his father, nor will his father communicate with him and any orders to that effect previously made by Federal Magistrate Neville are discharged.

All orders relating to arrangements that the parties may be required to make in relation to their attending upon D Contact Centre for the purpose of arranging some form of time between K and his father are discharged. Otherwise the application of the father relating to K is removed from the pending cases list and is finalised.

The matter relating to the division of property of the parties is to be the subject of a Conciliation Conference on 7 September 2010 and will proceed on that day in accordance with the directions previously given.

The appointment of Mrs Yeend as the Independent Children’s Lawyer is discharged.

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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