Katten & Katten (No 2) - [2022] FedCFamC2F 377

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Katten & Katten (No 2) [2022] FedCFamC2F 377

File number(s): MLC 2246 of 2019

Judgment of: JUDGE MCNAB

Date of judgment: 29 March 2022

Catchwords: FAMILY LAW – application by grandmother for enforcement of and a variation of spend time orders with grandchildren – orders not followed by mother – whether it is in the best interests of the child to enforce prior orders or make fresh orders – application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3).

Cases cited:
Aldridge & Keaton (2009) FLC 93-421

Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172

Bonner & Chandler [2021] FedCFamC1A 81

Church & Overton & Anor [2008] FamCA 953

Maldera v Orbel (2014) FLC 93-602

Valentine & Lacerra & Anor (2013) FLC 93-539

Division: Division 2 Family Law

Number of paragraphs: 79

Date of last submission/s: 9 November 2021

Date of hearing: 11 November 2021

Place: Melbourne

Counsel for the Applicant: Mr G Devries

Solicitor for the Applicant: Marcou and Associates Pty Ltd

Counsel for the First Respondent: Mr A Lovering

Solicitor for the First Respondent: Hartleys Lawyers

The Second Respondent Appeared in person
ORDERS

MLC 2246 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KATTEN

Applicant

AND:
MS K KATTEN

First Respondent

MR HANSEN

Second Respondent

ORDER MADE BY:

JUDGE MCNAB

DATE OF ORDER:

29 MARCH 2022

THE COURT ORDERS THAT:
1.The final parenting orders made 21 November 2019 be discharged.
2.The parents (First and Second Respondents) have equal shared responsibility for the child X born 2014 (“the child”)
3.The child live with the First Respondent Mother.
4.The child spend time and communicate with the Applicant Grandmother as agreed between the parties in writing.
5.The amended application filed 16 April 2021 otherwise be dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Katten & Katten has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR…

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 Katten & Katten (No 2)

Details

AGLC: Katten & Katten (No 2) [2022] FedCFamC2F 377
Case: [2022] FedCFamC2F 377
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dismissed an application by a grandmother for enforcement of and a variation of spend time orders with her grandchildren. The grandmother had applied for enforcement of, and a variation of, spend time orders with the children. The final parenting orders had been made in 2019 and had not been followed. The mother opposed the grandmother’s application. The court found that the relationship between the mother and grandmother was highly acrimonious and that any orders for the children to spend time with the grandmother would be unlikely to benefit the children. It was also found that enforcing the final parenting orders or making new ones would likely lead to further proceedings and ongoing conflict between the parties. Given these findings, the court discharged the final parenting orders and made new orders that the parents have equal shared responsibility for the child and that the child spend time and communicate with the grandmother as agreed between the parties in writing.

Orders