Lance and Kellaway - [2013] FCCA 2370

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANCE & KELLAWAY

[2013] FCCA 2370

Catchwords:
FAMILY LAW – Children – father’s claims on internet that mother “abducted” and “kidnapped” the child – no contact by father for approximately a year – lapses in father’s attempts to re-establish a relationship with the child – father writing a book about “parental child abduction” – whether orders should be final or interim – time to be supervised at Children’s Contact Service.

Legislation:

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 121

Bright and Bright v Bright and Mackley (1995) FLC 92-570
Runcorne & Raine [2008] FamCA 837

Stevens and Lee (1991) FLC 92-201

Applicant:

MS LANCE

Respondent:

MR KELLAWAY

File Number:

LNC 770 of 2009

Judgment of:

Judge Roberts

Hearing dates:

2 & 3 July 2013

Date of Last Submission:

3 July 2013

Delivered at:

Launceston

Delivered on:

4 July 2013

REPRESENTATION

Counsel for the Applicant:

Ms R Brown

Solicitors for the Applicant:

Legal Solutions

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:	Not applicable
Counsel for the Independent Child’s Lawyer:	Mr R Murray

Solicitors for the Independent Child’s Lawyer:

Murray & Associates

ORDERS

That MR KELLAWAY (“the father”) must forthwith remove, or cause to be removed from the internet any reference to any past, existing or contemplated Court proceedings in relation to the child X born (omitted) 2002 (“the child”) and any reference to the words “abduction”, “kidnapping”, “child stealing”, “parental alienation” or any similar words in relation to MS LANCE (“the mother”) or the child.
That the father be and is hereby restrained from denigrating the mother in speech or in writing, either directly or by implication.
That the father and the mother be and are hereby each restrained from threatening, assaulting or abusing the other.
That the mother have sole parental responsibility for the child.
That the mother must provide to the father copies of all school reports that she receives in relation to the child or authorise and request the relevant school to provide them to the father.
That the mother must inform the father as soon as practicable of any significant health difficulty or significant medical treatment in relation to the child and she must authorise the relevant treating medical professionals to provide information to the father.
That the child live with the mother.
That until further Order the child is to spend time with the father supervised at the (omitted) Children's Contact Service (“the Service”) at times and on such dates as may be determined by the staff of the Service.
That the parties are each to obey all reasonable requests and directions of the Service and its staff.
That the Legal Aid Commission of Tasmania is requested to extend the commission of the Independent Child’s Lawyer until the conclusion of these proceedings.
That this matter is otherwise adjourned for further mention in Launceston at 9.30 a.m. on Wednesday 9 October 2013.

THE COURT NOTES:

That it is envisaged that the father’s time to be spent with…

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 Lance and Kellaway

Details

AGLC: Lance and Kellaway [2013] FCCA 2370
Case: [2013] FCCA 2370
Decision Date: 4 July 2013

CaseChat Overview and Summary

In the matter of *Lance and Kellaway*, heard by Judge Roberts, the dispute concerned parenting arrangements for a child and the conduct of the father, Mr Kellaway, in relation to the mother, Ms Lance, and court proceedings. The court was required to make orders regarding the child's living arrangements, the father's access, and to address the father's online commentary and behaviour towards the mother.

The court was asked to determine the extent to which the father should be restrained from publishing certain information online and from denigrating the mother. Furthermore, the court needed to establish the specific parenting orders, including who would have sole parental responsibility, where the child would live, and the nature and supervision of the father's time with the child. The court also considered the need for ongoing communication between the parents regarding the child's education and health.

Judge Roberts ordered that the father must remove specific references to court proceedings and certain terms from the internet, and be restrained from denigrating the mother. Both parents were restrained from threatening, assaulting, or abusing each other. The mother was granted sole parental responsibility, and the child was ordered to live with her. The father was to have supervised time with the child at a children's contact service, with initial envisaged contact being one to two hours per fortnight, though the service staff retained discretion. The mother was ordered to provide the father with school reports and to inform him of significant health matters concerning the child. The court also requested the Legal Aid Commission to extend the commission of the Independent Child’s Lawyer and adjourned the matter for further mention.

Orders

Orders of the court

That MR KELLAWAY (“the father”) must forthwith remove, or cause to be removed from the internet any reference to any past, existing or contemplated Court proceedings in relation to the child X born (omitted) 2002 (“the child”) and any reference to the words “abduction”, “kidnapping”, “child stealing”, “parental alienation” or any similar words in relation to MS LANCE (“the mother”) or the child.

That the father be and is hereby restrained from denigrating the mother in speech or in writing, either directly or by implication.

That the father and the mother be and are hereby each restrained from threatening, assaulting or abusing the other.

That the mother have sole parental responsibility for the child.

That the mother must provide to the father copies of all school reports that she receives in relation to the child or authorise and request the relevant school to provide them to the father.

That the mother must inform the father as soon as practicable of any significant health difficulty or significant medical treatment in relation to the child and she must authorise the relevant treating medical professionals to provide information to the father.

That the child live with the mother.

That until further Order the child is to spend time with the father supervised at the (omitted) Children's Contact Service (“the Service”) at times and on such dates as may be determined by the staff of the Service.

That the parties are each to obey all reasonable requests and directions of the Service and its staff.

10.

That the Legal Aid Commission of Tasmania is requested to extend the commission of the Independent Child’s Lawyer until the conclusion of these proceedings.

11.

That this matter is otherwise adjourned for further mention in Launceston at 9.30 a.m. on Wednesday 9 October 2013.

THE COURT NOTES:

12.

That it is envisaged that the father’s time to be spent with the child in accordance with Order No. 8 hereof would initially be in the range of 1 to 2 hours per fortnight, but that is not meant to fetter the discretion of the staff at the Service in any way in relation either the frequency or the duration of such 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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