James and Mae - [2007] FamCA 99

FAMILY COURT OF AUSTRALIA

JAMES & MAE

[2007] FamCA 99

FAMILY LAW - CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility
FAMILY LAW - CHILDREN – With whom a child spends time

APPLICANT:

JAMES

RESPONDENT:

MAE

INDEPENDENT CHILDREN’S LAWYER:

MR WELCH

FILE NUMBER:

HBF

789

2002

DATE DELIVERED:

20 February 2007

PLACE DELIVERED:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Fitzgerald

Orders

THAT all previous parenting orders made under the Family Law Act in respect of the children J and C both born in June 1996 (“the children”) be and are hereby discharged.
THAT the children live with the applicant mother (“the mother”).
THAT the mother have sole parental responsibility for the children.
THAT the father spend no time with the children except to communicate with the children by way of letters, emails, photographs, cards and presents sent to P or such other address nominated by the mother with such mail to be vetted by the mother and provided that the mail is not offensive and/or distressing to the children the mother will promptly give such letters, emails, photographs, cards and presents to the children and facilitate the forwarding to the father of all such letters, emails, photographs, cards and presents from the children to him.
THAT the mother shall facilitate the forwarding to the father of all such letters, emails, photographs, cards and presents to the children provided the father ensures the mother is given written notification of the father’s current postal address.
THAT the father be restrained from attending any residence where the children may be living from time to time or the children’s school or any school the children may attend.
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.
IT IS NOTED
THAT for the purpose of s64D(2) of the Family Law Act there are exceptional circumstances whereby no parenting plan can make provision in relation to the issue of the father spending time with the children and this issue can only be determined by a Court exercising jurisdiction under the Family Law Act.
THAT these proceedings were heard in the absence of the father.
IT IS FURTHER ORDERED
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
THAT the mother be at liberty, notwithstanding s121 to provide a copy of these orders and the reasons to the Headmaster and teachers at the children’s school and to Area Commander and such other officers of…

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: James and Mae [2007] FamCA 99
Case: [2007] FamCA 99
Decision Date: 20 February 2007

CaseChat Overview and Summary

In the matter of *James and Mae*, Benjamin J of the Family Court of Australia considered an application concerning parenting orders for two children, J and C, born in June 1996. The dispute centred on the living arrangements and parental responsibility for the children, with the applicant mother seeking specific orders regarding the children's residence, the father's involvement, and communication.

The court was required to determine whether to discharge existing parenting orders and, if so, what new orders should be made regarding the children's residence, parental responsibility, and the nature and extent of the father's contact with them. A further issue was the father's ability to attend locations frequented by the children, and the court also needed to consider the provisions of sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth) concerning the particulars of obligations and consequences of contravention.

Benjamin J reasoned that the existing parenting orders should be discharged. The court ordered that the children live with the mother and that she have sole parental responsibility. The father was to spend no time with the children, with communication limited to letters, emails, photographs, cards, and presents sent to an address nominated by the mother, subject to vetting by the mother to ensure they were not offensive or distressing. The mother was to facilitate the forwarding of such items to the children and to the father, provided the father notified the mother of his current postal address. The father was also restrained from attending any residence where the children might be living or their school. The court further ordered that particulars of these obligations, the consequences of contravention, and details of support services be included in a Fact Sheet attached to the orders, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

THAT all previous parenting orders made under the Family Law Act in respect of the children J and C both born in June 1996 (“the children”) be and are hereby discharged.

THAT the children live with the applicant mother (“the mother”).

THAT the mother have sole parental responsibility for the children.

THAT the father spend no time with the children except to communicate with the children by way of letters, emails, photographs, cards and presents sent to P or such other address nominated by the mother with such mail to be vetted by the mother and provided that the mail is not offensive and/or distressing to the children the mother will promptly give such letters, emails, photographs, cards and presents to the children and facilitate the forwarding to the father of all such letters, emails, photographs, cards and presents from the children to him.

THAT the mother shall facilitate the forwarding to the father of all such letters, emails, photographs, cards and presents to the children provided the father ensures the mother is given written notification of the father’s current postal address.

THAT the father be restrained from attending any residence where the children may be living from time to time or the children’s school or any school the children may attend.

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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