Elton and Batey-Elton (No. 2) - [2009] FamCA 784

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON (NO. 2)

[2009] FamCA 784

FAMILY LAW – CHILDREN – Parenting dispute – Undefended proceeding after wife refuses to continue to participate upon refusal of Court to grant adjournment

Family Law Act 1975 (Cth)

Brown v Brown [2004FamCA 1067
Fortnum & Fortnum (No. 3) [2008] FamCAFC 133
MG and MG (2000) FamCA 893
Pitken and Hendry (2008) Fam CA 186
Tate v Tate (2000) FLC 93-047

APPLICANT:

Mr Elton

RESPONDENT:

Ms Batey-Elton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

TVF

2250

2004

DATE DELIVERED:

24 August 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Brisbane

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

24 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR PAGE SC

SOLICITOR FOR THE APPLICANT:

ROD MADSEN SOLICITOR

THE RESPONDENT:

IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR MCGREGOR

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

FOREST GLEN LAWYERS

Orders

That the any response filed by the wife seeking parenting orders is dismissed.
That the husband have leave to proceed with his application for final parenting orders in the absence of the wife.
That all previous parenting orders are discharged.
That the husband have the sole parental responsibility for the child S, a daughter born … May 1994.
That the child live with the husband.
That the child spend time with, and communicate with, the wife on terms and at times initiated by the child.
That notwithstanding paragraph 5 of these orders, the wife be at liberty to write to the child and send her presents from time to time unless the child specifically writes to the wife indicating that she no longer wishes such communications to continue.
That the husband be at liberty to provide the principal of the child’s school, a copy of these orders.
That the husband authorise the said principal to provide to the wife any reports and newsletters that parents would normally receive.
That the Independent Children’s Lawyer be discharged from the proceedings upon:
(a)advising the child of the making of these orders and that the parenting proceedings have concluded; and
(b)forwarding a copy of these orders and subsequently a copy of the reasons for judgement to the wife by ordinary pre-paid post.
That the husband’s application relating to final parenting orders filed 23 August 2006 is otherwise dismissed.
That all parenting issues be removed from the list of matters awaiting a hearing.
That all outstanding issues relating to financial matters are adjourned FOR MENTION ONLY at 9.30 am on 21 October 2009 before the Honourable Justice Jordan.
That the application by the husband for costs arising out of the parenting proceedings be adjourned to be determined by me in chambers.
That by 4 pm on 22 September 2009, the wife file and serve any written submission only on the costs application of the husband, such written submission to be filed with the Brisbane Registry of the Court.
That by 4 pm on 29 September 2009, the husband file and serve any reply to any written submission…

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: [2009] FamCA 784
Decision Date: 24 August 2009

CaseChat Overview and Summary

In *Elton and Batey-Elton (No. 2)*, Justice Cronin of the Family Court of Australia considered parenting orders concerning the child S, born in May 1994. The proceedings involved an application by the husband for final parenting orders and a response from the wife seeking parenting orders, which the court ultimately dismissed.

The central legal issues before the court were whether to grant the husband leave to proceed with his application for final parenting orders in the wife's absence, the appropriate final parenting orders to be made, and the discharge of previous parenting orders. The court also had to consider the role of the Independent Children's Lawyer and the husband's application for costs.

Justice Cronin reasoned that the wife's response seeking parenting orders should be dismissed. The court granted the husband leave to proceed with his application for final parenting orders in the wife's absence. The court discharged all previous parenting orders and made new orders granting the husband sole parental responsibility for S, with S to live with the husband. The child was to spend time with and communicate with the wife on terms and at times initiated by the child. The wife was permitted to write to the child and send presents unless the child indicated otherwise. The husband was authorised to provide the child's school principal with a copy of the orders and to authorise the principal to provide the wife with normal parental reports and newsletters. The Independent Children's Lawyer was to be discharged after advising the child of the orders and forwarding them and the reasons for judgment to the wife. The husband's application relating to final parenting orders was otherwise dismissed, and all parenting issues were removed from the hearing list. Outstanding financial matters were adjourned for mention, and the husband's application for costs was adjourned to be determined in chambers, with specific timelines set for written submissions from both parties. The orders also included particulars of obligations, consequences of contravention, and assistance for compliance, pursuant to sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

That the any response filed by the wife seeking parenting orders is dismissed.

That the husband have leave to proceed with his application for final parenting orders in the absence of the wife.

That all previous parenting orders are discharged.

That the husband have the sole parental responsibility for the child S, a daughter born … May 1994.

That the child live with the husband.

That the child spend time with, and communicate with, the wife on terms and at times initiated by the child.

That notwithstanding paragraph 5 of these orders, the wife be at liberty to write to the child and send her presents from time to time unless the child specifically writes to the wife indicating that she no longer wishes such communications to continue.

That the husband be at liberty to provide the principal of the child’s school, a copy of these orders.

That the husband authorise the said principal to provide to the wife any reports and newsletters that parents would normally receive.

10.

That the Independent Children’s Lawyer be discharged from the proceedings upon:

(a) advising the child of the making of these orders and that the parenting proceedings have concluded; and

(b) forwarding a copy of these orders and subsequently a copy of the reasons for judgement to the wife by ordinary pre-paid post.

11.

That the husband’s application relating to final parenting orders filed 23 August 2006 is otherwise dismissed.

12.

That all parenting issues be removed from the list of matters awaiting a hearing.

13.

That all outstanding issues relating to financial matters are adjourned FOR MENTION ONLY at 9.30 am on 21 October 2009 before the Honourable Justice Jordan.

14.

That the application by the husband for costs arising out of the parenting proceedings be adjourned to be determined by me in chambers.

15.

That by 4 pm on 22 September 2009, the wife file and serve any written submission only on the costs application of the husband, such written submission to be filed with the Brisbane Registry of the Court.

16.

That by 4 pm on 29 September 2009, the husband file and serve any reply to any written submission of the wife as foreshadowed in paragraph 13 of these orders.

17.

That after 29 September 2009, the issue of costs as sought by the husband be determined in chambers.

18.

That pursuant to s.65DA(2) and s.62B, 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.

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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