King and King & Anor - [2018] FamCA 762

FAMILY COURT OF AUSTRALIA

KING & KING AND ANOR

[2018] FamCA 762

FAMILY LAW – CHILDREN – PARENTING – application by father for time with children aged 15 and 12 years – not change of circumstances since last determination in 2013 which warrant re-examination of parenting arrangements – rule in Rice & Asplund – application dismissed.

FAMILY LAW – CHILDREN – PARENTING – application by older sister of children for time with younger sisters – best interests – no time.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Rice & Asplund (1978) 6 FamLR 570
Poisat & Poisat [2014] FamCAFC 128
SPS & PLS [2008] FamCAFC 16

APPLICANT:

Ms King

FIRST RESPONDENT:

Mr M King

SECOND RESPONDENT:

Ms C King

INDEPENDENT CHILDREN’S LAWYER:

Mr W Dunstan

FILE NUMBER:

MLC

9554

2011

DATE DELIVERED:

25 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

11, 12, 13, 14 and 15 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Staindl

SOLICITOR FOR THE APPLICANT:

Clancy & Triado

COUNSEL FOR THE FIRST RESPONDENT:

In person

SOLICITOR FOR THE FIRST RESPONDENT: In person

COUNSEL FOR THE SEVENTH RESPONDENT:

In person

SOLICITOR FOR THE SEVENTH RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bowlen Dunstan & Associates

Orders

The orders will be:

(1)All previous parenting orders be discharged.
(2)The children D, born … 2003, and E, born … 2006, live with the mother.
(3)The mother have sole parental responsibility for the children.
(4)All previous orders contemplating the father spending time with the children be and are hereby discharged, with the effect that the father has no entitlement to spend time with the children or either of them.
(5)The father be at liberty to send cards, letters or gifts to the children on or around special occasions, such as their birthday, Father’s Day or New Year, and the mother facilitate receipt by the children (or either of them) of such cards, letters and gifts as are sent by the father at her discretion. If the mother elects not to provide the children with the items sent by the father (or any of them) she return those that were not given to the children to the father care of any return address supplied in the parcel, which was posted.
(6)The mother notify the father if the children or either of them suffer from a serious illness or injury or if either require hospitalisation, provided that nothing in this order entitles the father to attend upon the children or either of them at the hospital or other such location as the children or either of them may be located.
(7)In the event that the children spend time or communicate with the second named respondent, Ms C King (who is their older sister), by agreement with the mother, each of the father and Ms C King be and are hereby restrained from causing, permitting or suffering the father to be present…

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 King and King & Anor

Details

AGLC: King and King & Anor [2018] FamCA 762
Case: [2018] FamCA 762
Decision Date: 25 September 2018

CaseChat Overview and Summary

In the Family Court of Australia, Bennett J considered applications concerning the parenting arrangements for two children, D and E. The primary application was brought by the father seeking time with the children, who were aged 15 and 12 years at the time of the hearing. A secondary application was made by the children's older sister, Ms C King, seeking time with her younger sisters.

The court was required to determine whether there had been a change in circumstances since the last parenting orders were made in 2013 that would warrant a re-examination of the existing arrangements, applying the principles established in *Rice v Asplund*. Additionally, the court had to consider the best interests of the children in relation to the application for time brought by their older sister.

Bennett J found that no material change in circumstances had occurred since the 2013 orders that would justify revisiting the parenting arrangements. Consequently, the father's application for time with the children was dismissed. Regarding the application by the older sister, the court determined that it was not in the children's best interests for her to have time with them.

The court ordered that all previous parenting orders be discharged. The children were to live with the mother, who was granted sole parental responsibility. The father was to have no entitlement to spend time with the children, although he was permitted to send cards, letters, or gifts on special occasions, with the mother having discretion over their delivery. The mother was also ordered to notify the father of any serious illness or injury affecting the children, but the father was not entitled to attend upon them. Further orders addressed communication between the father and the older sister, and the consequences of contravening the orders. All other parenting applications were dismissed.

Orders

Orders of the court

The orders will be:

(1) All previous parenting orders be discharged.

(2) The children D, born … 2003, and E, born … 2006, live with the mother.

(3) The mother have sole parental responsibility for the children.

(4) All previous orders contemplating the father spending time with the children be and are hereby discharged, with the effect that the father has no entitlement to spend time with the children or either of them.

(5) The father be at liberty to send cards, letters or gifts to the children on or around special occasions, such as their birthday, Father’s Day or New Year, and the mother facilitate receipt by the children (or either of them) of such cards, letters and gifts as are sent by the father at her discretion. If the mother elects not to provide the children with the items sent by the father (or any of them) she return those that were not given to the children to the father care of any return address supplied in the parcel, which was posted.

(6) The mother notify the father if the children or either of them suffer from a serious illness or injury or if either require hospitalisation, provided that nothing in this order entitles the father to attend upon the children or either of them at the hospital or other such location as the children or either of them may be located.

(7) In the event that the children spend time or communicate with the second named respondent, Ms C King (who is their older sister), by agreement with the mother, each of the father and Ms C King be and are hereby restrained from causing, permitting or suffering the father to be present or to participate in the time or communication including but not limited to, the passing of messages from the father to the children (or either of them).

(8) That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

(9) That otherwise all parenting applications be dismissed and the bifurcated property proceedings be adjourned to the docket registrar on a date to be fixed for further directions.

(10) In respect of costs:-

(a) Any party wishing to make an application for costs, make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including, but not necessarily limited to, a calculation of such costs in accordance with the Itemised Scale of Costs at Schedule 3 to the Family Law Rules 2004 (Cth);

(b) Any party who is served with an application for costs against him/her, file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application;

(c) My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take not longer than one hour);

NOTING THAT any costs so ordered may include the costs of making the application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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