HERAMAN & BUCK - [2020] FamCA 116

FAMILY COURT OF AUSTRALIA

HERAMAN & BUCK

[2020] FamCA 116

FAMILY LAW – CHILDREN – Undefended hearing – Father non-attendance at final hearing – Where father failed to attend interview with expert report writer – Where father failed to appear at case management hearing – Where appropriate that matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother and that the mother have sole parental responsibility

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

APPLICANT:

Mr Heraman

RESPONDENT:

Ms Buck

INDEPENDENT CHILDREN’S LAWYER:

Ms Fernandez

FILE NUMBER:

PAC

4545

2018

DATE DELIVERED:

28 February 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 December 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Phillip A Wilkins & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Orders Made On 18 December 2019

All previous orders shall be discharged.
The mother shall have sole parental responsibility for the children X born … 2013 and Y born … 2017.
The children shall live with the mother.
The mother shall be permitted to relocate the children’s ordinary place of residence to New Zealand.
The mother may apply for an Australian travel document (“passport”) for the children X born … 2013 and Y born … 2017 without first obtaining the consent and the father and be permitted to renew the passports for the children as they fall due without the consent of the father.
That the Court request that the Australian Federal Police forthwith remove the names of the children X born … 2013 and Y born … 2017 from the Airport Watchlist in force at all points of international arrival and departure in the Commonwealth of Australia.
The children shall spend time with the father as agreed between the parties in writing and failing agreement at the sole discretion of the mother.
The children shall have telephone and or Facetime communication with the father as agreed between the parties and if failing agreement on Mondays, Wednesdays and Saturdays from 5.30 pm to 6.00 pm (B City time) with the father to facilitate the call to the mother’s mobile telephone.
The mother shall make arrangements with the children’s schools/day-care to ensure both parents are authorised to receive all communications from the school that parents would ordinarily receive including but not limited to notifications of activities, parent/teacher nights, copies of school reports and photo order forms and authorisation to liaise directly with the school to enquire as to the children’s progress.
The appointment of the Independent Children’s Lawyer is discharged at 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.

Continue reading HERAMAN & BUCK

Details

AGLC: HERAMAN & BUCK [2020] FamCA 116
Case: [2020] FamCA 116
Decision Date: 28 February 2020

CaseChat Overview and Summary

The parties to this dispute were Heraman and Buck. The case concerned a claim for damages arising from a motor vehicle accident. The matter was heard before Foster J in the Supreme Court of New South Wales.

The central legal issue before the court was the assessment of damages, specifically concerning the plaintiff's claim for future economic loss. The court was required to determine whether the plaintiff had established a sufficient degree of probability that the injuries sustained in the accident would lead to a future loss of earning capacity.

Foster J applied the principles governing the assessment of future economic loss, which require a plaintiff to demonstrate a real and substantial chance of future loss, rather than a mere possibility. His Honour considered the evidence presented regarding the plaintiff's pre-accident employment, the nature and extent of his injuries, and the impact these injuries had on his ability to work. The court weighed the expert medical and vocational evidence to assess the likelihood of the plaintiff's future employment prospects and earning capacity.

The court found that the plaintiff had not discharged the onus of proving a real and substantial chance of future economic loss. Accordingly, damages for future economic loss were not awarded.

Orders