Egglestone & Ors and Finnegan & Ors - [2018] FamCA 143

FAMILY COURT OF AUSTRALIA

EGGLESTONE AND ORS & FINNEGAN AND ORS

[2018] FamCA 143

FAMILY LAW – CHILDREN – Best Interests – Where there are seven children with four different fathers – Where the Applicant is the maternal grandmother – Where the Applicant seeks time with the children – Where the Applicant’s Initiating Application has been dismissed – Where the fathers of the children have disengaged or withdrawn from the proceedings – Where orders made for the children to live with the mother and spend time with the fathers as agreed – Where the only live issues are the children’s time with the Applicant and changing the children’s surnames – Where the mother seeks that the children spend no time with the Applicant – Where there is high conflict between the Applicant and the mother – Where the Family Consultant is of the opinion contact with the Applicant would cause conflict and stress that would outweigh any benefit of a meaningful relationship with the Applicant – Orders made for the Applicant to spend no time with the children – Where the mother seeks to change the children’s surnames – Where the Independent Children’s Lawyer opposes a change in the children’s surnames – Where the Family Consultant is of the opinion that a change in surname does not benefit the children – Orders made restraining the mother from changing the children’s surnames.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA

Donnell & Dovey [2010] FamCAFC 15
Flanagan v Handcock (2000) 27 Fam LR 615
G & C [2006] FamCA 994
In the Marriage of Beach and Stemmler (1979) FLC 90-692
In the Marriage of Chapman and Palmer (1978) FLC 90-510
In the Marriage of George and Radford (1976) FLC 90-060
Malmo & Hartigan [2010] FAMCA 1182
Mazorski & Albright (2007) Fam LR
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Reynolds and Sherman [2016] FamCAFC 240

APPLICANT:

Ms Egglestone

SECOND APPLICANT:

Mr J Greatbatch

THIRD APPLICANT:	Ms Greatbatch
RESPONDENT:	Ms Finnegan

SECOND RESPONDENT:

Mr Greatbatch

THIRD RESPONDENT:

Mr Bilson

FOURTH RESPONDENT:

Mr Gillies

FIFTH RESPONDENT:

Mr Hurst

INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

FILE NUMBER:

PAC

3136

2014

DATE DELIVERED:

8 March 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

16 November 2017

REPRESENTATION

THE APPLICANT:	Self-represented via AAPT link
THE SECOND APPLICANT:	No Appearance
THE THIRD APPLICANT:	No Appearance
SOLICITOR FOR THE RESPONDENT:	Lamrocks Solicitors

THE SECOND RESPONDENT:

Self-represented in person

THE THIRD RESPONDENT:

No appearance

THE FOURTH RESPONDENT:

No appearance

THE FIFTH RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Beck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

The second Respondent Mr Greatbatch withdraws from proceedings.
By consent of the Applicant, the first Respondent and the Independent Children’s Lawyer orders are made in accordance with paragraphs 1, 3, 7, 9 and 10 of Exhibit 1 subject to the correction of some typographical errors and order 10 is amended by…

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: [2018] FamCA 143
Decision Date: 8 March 2018

CaseChat Overview and Summary

The applicants, Egglestone and Finnegan, sought orders concerning their grandchildren, with the respondents including the children's mother and an Independent Children's Lawyer. The proceedings before Hannam J involved a dispute over contact arrangements and other matters pertaining to the children.

The court was required to determine the terms of consent orders regarding the children's welfare and contact arrangements, as well as to make orders concerning the applicants' contact with the children and the mother's ability to change the children's surname registration.

Hannam J made orders by consent of the applicants, the first respondent (the mother), and the Independent Children's Lawyer, reflecting specific paragraphs of an agreed exhibit, with minor typographical corrections and an amendment to one clause. Further orders were made in accordance with other specified paragraphs of the exhibit. Specifically, the maternal grandmother was ordered to have no contact with the children, either in person or by communication, unless initiated by the children. The mother was also restrained from changing the current registration of the children's surnames.

Orders

Orders of the court

The second Respondent Mr Greatbatch withdraws from proceedings.

By consent of the Applicant, the first Respondent and the Independent Children’s Lawyer orders are made in accordance with paragraphs 1, 3, 7, 9 and 10 of Exhibit 1 subject to the correction of some typographical errors and order 10 is amended by adding the words “or any other person” in lieu of the words “servants or agents”.

Orders are made in accordance with paragraph 2, 4, 5 and 8 of Exhibit 1.

Orders made in chambers

The Applicant maternal grandmother have no contact, either in person or by written or verbal communication with the children other than as instigated by the children.

The mother be restrained from changing the current registration of the children’s surnames.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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