Lackey and Mae (No.2) - [2014] FCCA 2114

FEDERAL CIRCUIT COURT OF AUSTRALIA

LACKEY & MAE (No.2)

[2014] FCCA 2114

Catchwords:
FAMILY LAW – Discrete parenting issues in relation to one teenage child (with some mental health issues) who has changed residence contrary to previous orders of the Court – Father seeks to re-visit parenting orders in relation to other, younger children – principles in Rice & Asplund applied to Father’s application – parents and children the subject of on-going contest and involvement with NSW Department of Family and Community Services.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(a) & (b), 61C(3), 61DA, 65D(2), 65DAA

Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175
Lackey & Mae [2013] FMCAfam 284
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300, (2008) 39 Fam LR 654, (2008) FLC ¶93-383
Poisat & Poisat [2014] FamCAFC 128
Rice & Asplund (1979) FLC ¶90-725
SPS & PLS (2008) FLC ¶93-363
In the Marriage of Vlug & Poulos (1997) 22 Fam LR 324

Applicant:

MS LACKEY

Respondent:

MR MAE

File Number:

CAC 987 of 2009

Judgment of:

Judge Neville

Hearing date:

10 April 2014

Date of Last Submission:

11 July 2014

Delivered at:

Canberra

Delivered on:

12 September 2014

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr G Stagg

Solicitors for the Applicant:

Legal Aid, ACT

Counsel for the Respondent:

Ms J Houghton

Solicitors for the Respondent:

Infinity Legal

Solicitor/Advocate for the Independent Children's Lawyer:

Mrs G Yeend

Solicitors for the Independent Children's Lawyer:

Yeend & Associates, Canberra

ORDERS

The Application by the Father to amend the 2013 orders in relation to X born (omitted) 2002, Y born (omitted) 2007 and Z born (omitted) 2008 be dismissed.
Pursuant to s.61C(3) of the Family Law Act 1975, whenever and while-ever the child W born (omitted) 1999 (“W”) is in the care of either parent, the parent with whom W resides shall have parental responsibility for her.
The parents are to keep each other informed of any significant decision in relation to W, particularly in relation to her health.
Otherwise, all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lackey & Mae (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 987 of 2009

MS LACKEY

Applicant

And

MR MAE

Respondent

REASONS FOR JUDGMENT

Introduction

The very long history and general background to this virtually never-ending parenting saga was set out in an exhaustive judgment delivered on 4^th April 2013 (“the 2013 orders” and or “the 2013 judgment”). The history and background there provided will not be repeated. What follows should be read against the detail of that earlier judgment.[1]
[1] Lackey & Mae [2013] FMCAfam 284.
The current contest essentially concerns whether, and if so how, the parenting orders previously made in relation to now 15 year old W should be varied,…

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 Lackey and Mae (No.2)

Details

AGLC: Lackey and Mae (No.2) [2014] FCCA 2114
Case: [2014] FCCA 2114
Decision Date: 12 September 2014

CaseChat Overview and Summary

In *Lackey and Mae (No.2)*, the Federal Circuit and Family Court of Australia considered an application by the Father to amend existing parenting orders concerning three children, X, Y, and Z. The dispute also involved ongoing arrangements for a fourth child, W.

The court was required to determine whether to grant the Father's application to amend the parenting orders for X, Y, and Z. Additionally, the court needed to establish the parental responsibility for W and outline the communication requirements between the parents regarding W's welfare.

Judge Neville dismissed the Father's application to amend the orders concerning X, Y, and Z. For W, the court made orders pursuant to s.61C(3) of the *Family Law Act 1975*, stipulating that the parent with whom W resides shall have parental responsibility for her. The parents were also directed to keep each other informed of significant decisions concerning W, particularly regarding her health. All other outstanding applications were dismissed.

Orders

Orders of the court

The Application by the Father to amend the 2013 orders in relation to X born (omitted) 2002, Y born (omitted) 2007 and Z born (omitted) 2008 be dismissed.

Pursuant to s.61C(3) of the Family Law Act 1975, whenever and while-ever the child W born (omitted) 1999 (“W”) is in the care of either parent, the parent with whom W resides shall have parental responsibility for her.

The parents are to keep each other informed of any significant decision in relation to W, particularly in relation to her health.

Otherwise, all outstanding applications be dismissed.

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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