Lachlan and Lachlan - [2009] FamCA 520

FAMILY COURT OF AUSTRALIA

LACHLAN & LACHLAN

[2009] FamCA 520

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms Lachlan

RESPONDENT:

Mr Lachlan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

3137

2006

DATE DELIVERED:

19 June 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

2 March 2009 &

26 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

In Person

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

Orders

On the application of the mother and by consent, Orders 3, 4, 6, 7, 8, 9 and 10 of the orders made by me Justice Le Poer Trench on 25 June 2008 be discharged.
The Independent Children's Lawyer is to use her best endeavours to meet with the child and explain the orders made today and reasons for same.
All outstanding applications in relation to parenting be dismissed.
The Court notes all matters in relation to parenting are now concluded.
The docket Registrar is to ascertain from the mother what else remains outstanding in relation to financial matters and advise me. Upon receipt of that advice I propose to make directions in relation to the outstanding financial matters.
The Court notes the Family Consultant, Mr G, has made himself available to meet with the mother and discuss the implications of the orders made today.
The Court notes Mr G’s invitation has also been extended to the father.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3137 of 2006

MS LACHLAN

Applicant

And

MR LACHLAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Before the Court is an Application filed by the mother 11 November 2008 in the Federal Magistrates Court and a Response filed by the father on 16 January 2009 in the Family Court relating to children’s matters and property matters. In relation to the children’s matter the only child the subject of the proceedings is the parties’ son born in September 1995 (13).
On 25 June 2008 I made orders following a lengthy hearing which dealt with both children’s and property issues. In relation to the child I made an order that the father have sole parental responsibility and that the child live with his father. I made orders for the child to spend time with his mother.
The applications filed by the mother principally complain that she has not been able to exercise the time provided for under the Orders made 25 June 2008 with the child.
Since the judgment handed down on 25 June 2008 the child has continued to be directly involved in the disputes between his parents. His behaviour has become very worrying given his…

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 Lachlan and Lachlan

Details

AGLC: Lachlan and Lachlan [2009] FamCA 520
Case: [2009] FamCA 520
Decision Date: 19 June 2009

CaseChat Overview and Summary

In the matter of *Lachlan and Lachlan*, heard before Le Poer Trench J, the application concerned the discharge of existing parenting orders and the resolution of outstanding financial matters. The proceedings involved the mother and father, with the Independent Children's Lawyer also playing a role in representing the child's interests.

The primary legal issues before the Court were the discharge of specific parenting orders made on 25 June 2008, the dismissal of all outstanding applications relating to parenting, and the determination of how to address the remaining financial matters. The Court was also tasked with ensuring the child understood the implications of the orders made.

Le Poer Trench J, by consent of the mother, ordered the discharge of several specific parenting orders. The Court further ordered the dismissal of all outstanding applications concerning parenting, signifying the conclusion of these matters. The Independent Children's Lawyer was directed to explain the new orders and their reasons to the child. Regarding financial matters, the Court noted that the Family Consultant had offered to discuss the implications of the orders with both parents. The docket Registrar was instructed to ascertain from the mother what financial matters remained outstanding, to enable the Court to make further directions.

Orders

Orders of the court

On the application of the mother and by consent, Orders 3, 4, 6, 7, 8, 9 and 10 of the orders made by me Justice Le Poer Trench on 25 June 2008 be discharged.

The Independent Children's Lawyer is to use her best endeavours to meet with the child and explain the orders made today and reasons for same.

All outstanding applications in relation to parenting be dismissed.

The Court notes all matters in relation to parenting are now concluded.

The docket Registrar is to ascertain from the mother what else remains outstanding in relation to financial matters and advise me. Upon receipt of that advice I propose to make directions in relation to the outstanding financial matters.

The Court notes the Family Consultant, Mr G, has made himself available to meet with the mother and discuss the implications of the orders made today.

The Court notes Mr G’s invitation has also been extended to the father.

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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