FOSTER & MAILER - [2015] FamCA 369

FAMILY COURT OF AUSTRALIA

FOSTER & MAILER

[2015] FamCA 369

FAMILY LAW – CHILDREN – Final parenting orders – undefended hearing – orders sought by mother for sole parental responsibility, father to spend no time with the child, not communicate with the child and seeking a change of the child’s surname – father currently imprisoned for having been convicted of charges relating to his conduct towards the mother and child – father due for release in 2017 unless paroled earlier – consideration of best interests of the child – orders made in terms proposed by mother.

Family Law Act 1975 (Cth) s 4, 4AB, 60CC, 61DA.

Beach & Stemmler (1979) FLC 90-692
Chapman & Palmer (1978) FLC 90-510
Flanagan & Hancock (2001) FLC 93-074
George & Radford (1976) FLC 90-060

Jordan & Lloyd and Ors [2010] FamCA 288

Kelley & Kelley (1981) FLC 91-002
Mahoney & McKenzie (1993) FLC 92-408

Peters & Richards (No 4) [2013] FamCA 930

Raymond & Harold [2009] FamCA 155
Skrabl & Leech (1989) FLC 92-016

APPLICANT:

Ms Foster

RESPONDENT:

Mr Mailer

FILE NUMBER:

MLC

701

2015

DATE DELIVERED:

15 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

2 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Andrew Robinson

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

THE RESPONDENT:

No appearance

Orders

Leave granted to the mother to proceed in the absence of the father
The mother have sole parental responsibility for the child B (male) born … 2006 (“the child”).
The child live with the mother.
The child spend no time with the father and the father not communicate with the child save by order of the Court.
The mother be at liberty to change the child’s surname and place of residence without notice to the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Foster & Mailer 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 MELBOURNE

FILE NUMBER: MLC 701 of 2015

Ms Foster

Applicant

And

Mr Mailer

Respondent

REASONS FOR JUDGMENT

Introduction

This is an undefended application by the mother for a parenting order in respect of an eight year old child of a relationship, B. The respondent father is undergoing a lengthy term of imprisonment and has been served with all documents relied upon by the mother by way of post to the prison. The father has not filed any documents with the Court or made any request to participate by electronic communication.
The mother seeks an order for sole parental responsibility for the child, that the child live with her and have no communication or spend time with the father. The mother also seeks that she be at liberty to change the child’s surname and place of residence without notice to the father.
The parties began living together in 2004 and separated in 2008. The mother deposed that the child has not seen the…

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

AGLC: FOSTER & MAILER [2015] FamCA 369
Case: [2015] FamCA 369
Decision Date: 15 May 2015

CaseChat Overview and Summary

In *Foster & Mailer* [2015] FamCA 369, the Family Court of Australia considered an application by a mother for final parenting orders concerning her child, B. The father was currently imprisoned following convictions related to his conduct towards the mother and child, with his release date in 2017, subject to potential earlier parole. The mother sought orders for sole parental responsibility, that the child spend no time with the father, that the father have no communication with the child, and for liberty to change the child's surname. The hearing proceeded undefended.

The primary legal issues before the court were whether the orders sought by the mother were in the best interests of the child, as mandated by section 60CC of the *Family Law Act 1975* (Cth), and whether to grant leave for the mother to proceed in the father's absence. The court was required to consider the specific circumstances of the father's imprisonment and the impact of his past conduct on the child's welfare.

Thornton J applied the principles of the *Family Law Act 1975* (Cth), particularly the paramountcy of the child's best interests. The court considered the father's criminal convictions and imprisonment, which demonstrated a history of harmful conduct towards the mother and child. Given this history and the father's current incarceration, the court found that it was in the child's best interests to make orders reflecting the mother's proposals. The court granted leave for the mother to proceed in the father's absence, ordered that the mother have sole parental responsibility, that the child live with the mother, and that the child spend no time with and have no communication with the father, save by further order of the Court. The mother was also granted liberty to change the child's surname and place of residence without notice to the father.

Orders

Orders of the court

Leave granted to the mother to proceed in the absence of the father

The mother have sole parental responsibility for the child B (male) born … 2006 (“the child”).

The child live with the mother.

The child spend no time with the father and the father not communicate with the child save by order of the Court.

The mother be at liberty to change the child’s surname and place of residence without notice to the father.

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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