Fello and Sternfeldt - [2016] FamCA 59

FAMILY COURT OF AUSTRALIA

FELLO & STERNFELDT

[2016] FamCA 59

FAMILY LAW – CHILDREN – Undefended hearing – Where previous orders made for the child to reside with the maternal grandmother and spend supervised time with the father – Where significant concerns for the child’s safety in the presence of the father when unsupervised – Where father has failed to participate in proceedings – Consideration of child’s meaningful relationship with the father and the need to protect the child – Where orders for the father’s time with the child discharged.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Fello & Sternfeldt [2014] FamCA 312
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT:

Ms A Fello

RESPONDENT:

Mr Sternfeldt

FILE NUMBER:

PAC

2504

2012

DATE DELIVERED:

11 February 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

1 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

Orders

That orders for the child B born … 2010 to spend time with the father made on the 15 May 2014 be discharged.
That the child spend time with the father as agreed between the applicant maternal grandmother and the father and upon such conditions as are agreed between the maternal grandmother and the father with such agreement or agreements to be in writing with such writing to include SMS or email communication.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fello & Sternfeldt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2504 of 2012

Ms A Fello

Applicant

And

Mr Sternfeldt

Respondent

REASONS FOR JUDGMENT

The present proceedings are further parenting proceedings in relation to the child B born in 2010.
Final parenting orders were previously made on 15 May 2014 in proceedings between the applicant maternal grandmother and the father in circumstances whereby the mother is deceased: (Fello & Sternfeldt [2014] FamCA 312).
Orders made on 15 May 2014 provided in summary:
a)That the applicant maternal grandmother have sole parental responsibility for the child and that she notify the father and the paternal grandmother as to any decisions made in respect of the child’s health, education and will major long-term issues in relation to the child;
b)That the child live with the applicant maternal grandmother;
c)That the child spend time with the father each Saturday from 2:00pm until 6:00pm and on other special days and for such other periods as agreed between the parties with the child’s time with the father to be in the presence of the paternal grandmother unless otherwise agreed; and
Otherwise there were other specific issues orders made not relevant to the present determination.
The present application was filed by the maternal grandmother on 15 October 2015 and in that application she…

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 Fello and Sternfeldt

Details

AGLC: Fello and Sternfeldt [2016] FamCA 59
Case: [2016] FamCA 59
Decision Date: 11 February 2016

CaseChat Overview and Summary

The applicant, the maternal grandmother, sought to discharge existing orders for the child B to spend time with the respondent father. The matter came before Foster J.

The central legal issue before the court was whether the existing orders for the child B to spend time with the father should be discharged, and if so, what alternative arrangements for the child's time with the father were appropriate.

Foster J discharged the orders made on 15 May 2014. The court then made new orders that the child B would spend time with the father as agreed between the maternal grandmother and the father. These agreements were to be in writing, including SMS or email communication, and could be subject to conditions agreed upon by the maternal grandmother and the father.

Orders

Orders of the court

That orders for the child B born … 2010 to spend time with the father made on the 15 May 2014 be discharged.

That the child spend time with the father as agreed between the applicant maternal grandmother and the father and upon such conditions as are agreed between the maternal grandmother and the father with such agreement or agreements to be in writing with such writing to include SMS or email communication.

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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