James and Nolan - [2010] FamCA 125

FAMILY COURT OF AUSTRALIA

JAMES & NOLAN

[2010] FamCA 125

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr James

RESPONDENT:

Ms Nolan

FILE NUMBER:

WOC

201

2007

DATE DELIVERED:

25 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

2 September 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Verekers Lawyers

Orders

The amended application for final orders filed by the father on 21 March 2007 be dismissed.
The mother have sole parental responsibility for making decisions of a long term nature for … born … July 2005 (“the child”).
The child live with the mother at all times.
The child not spend any time with the father.
The father is restrained from approaching the mother or the child at any time.
The mother send to the father photographs of the child on each of the child’s birthdays and at Christmas time each year.
The mother receive from the father any cards, letters and other written material addressed to the child, and the mother, if she believes the material is appropriate, give the child the material. This material will be forwarded to the mother by the father, care of her solicitors’ office or such other address as the mother may advise the father in writing from time to time and the mother will use her best endeavours to keep the father informed of her mailing address at all times.

IT IS NOTED that publication of this judgment under the pseudonym James & Nolan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 201 of 2007

MR JAMES

Applicant

And

MS NOLAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings are about parenting arrangements for a child born in July 2005 (currently 4 years old). The applicant father is seeking orders that he be allowed to communicate with the child once a week by telephone. The respondent mother opposes this.
The remaining orders sought by the mother are not opposed by the father.
The father is currently incarcerated in a correctional facility and appeared by electronic means (telephone). The father is due to be released from incarceration in March 2011.

APPLICATIONS

Father

The father sought orders that he have weekly telephone contact with the child.
The father did not seek any orders for face to face time with the child at this time.
The father had been given an opportunity to prepare written material for hearing but was not able to do so. The father stated that this was due to lack of resources within the correctional facility and his inability to organise Legal Aid during the time that he had available.

Mother

The orders sought by the mother are set out in her amended response to an application for final orders filed 15 January 2009. The orders which the mother sought were as follows:
1.That the amended application for final orders…

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 James and Nolan

Details

AGLC: James and Nolan [2010] FamCA 125
Case: [2010] FamCA 125
Decision Date: 25 February 2010

CaseChat Overview and Summary

In the matter of *James and Nolan*, heard before Watts J, the dispute concerned final parenting orders. The father sought to vary existing arrangements, while the mother sought orders for sole parental responsibility, that the child live with her, and that the child not spend any time with the father. The father also sought orders for the child to spend time with him.

The primary legal issues before the court were: (1) whether the child should have sole parental responsibility for long-term decisions vested in the mother; (2) whether the child should live with the mother and not spend any time with the father; and (3) whether restraining orders should be made against the father. The court also considered the appropriate arrangements for communication between the father and the child, and the mother and the child.

Watts J determined that it was in the child's best interests for the mother to have sole parental responsibility for long-term decisions, for the child to live with the mother at all times, and for the child not to spend any time with the father. The court reasoned that these orders were necessary to ensure the child's safety and well-being. Consequently, the father's amended application for final orders was dismissed. The court also made orders restraining the father from approaching the mother or the child, and established a limited mechanism for the father to send cards, letters, and photographs to the child via the mother.

Orders

Orders of the court

The amended application for final orders filed by the father on 21 March 2007 be dismissed.

The mother have sole parental responsibility for making decisions of a long term nature for … born … July 2005 (“the child”).

The child live with the mother at all times.

The child not spend any time with the father.

The father is restrained from approaching the mother or the child at any time.

The mother send to the father photographs of the child on each of the child’s birthdays and at Christmas time each year.

The mother receive from the father any cards, letters and other written material addressed to the child, and the mother, if she believes the material is appropriate, give the child the material. This material will be forwarded to the mother by the father, care of her solicitors’ office or such other address as the mother may advise the father in writing from time to time and the mother will use her best endeavours to keep the father informed of her mailing address at all times.

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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