Lancet and Deaves - [2011] FMCAfam 304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANCET & DEAVES

[2011] FMCAfam 304

FAMILY LAW – Parenting – application to set aside final parenting orders – where final parenting orders do not provide for father to spend time with or communicate with children – where father was imprisoned at the time of the making of the final orders for serious assault in former matrimonial home – where father has since been released from prison and completed period of parole – consideration of principles in Rice & Asplund (1979) FLC 90-725 and subsequent cases – whether father has established that there has been a change of circumstances.

Family Law Act 1975 (Cth)

Hogan (1986) FLC 91-704
I & I (No.2) (1996) FLC 92-625
Kelly & Kelly (No.2) (1981) FLC 91-108
Marsden and Winch (2009) FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Penfold (1980) FLC 90-800
Re David (Costs) (1998) FLC 92-809
Reid & Lynch (2010) FamCAFC 184
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

Applicant:

MR LANCET

Respondent:

MS DEAVES

File Number:

MLC 1286 of 2007

Judgment of:

Walters FM

Hearing date:

11 March 2011

Date of Last Submission:

11 March 2011

Delivered at:

Melbourne

Delivered on:

11 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Thomas

Solicitors for the Applicant:

Cahill & Rowe Family Law

Counsel for the Respondent:

Mr Curtain

Solicitors for the Respondent:

Vicki Sweet Family Law

ORDERS

The father’s application filed 24 January 2011 be dismissed.
The father pay the mother’s costs fixed in the sum of $2000.00 – such costs to be paid by not later than 11 September 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 1286 of 2007

MR LANCET

Applicant

And

MS DEAVES

Respondent

REASONS FOR JUDGMENT

(Partly ex tempore – where indicated)

Preamble/background

These proceedings concern the parties’ children, [X], [Y] and [Z] – aged 12, 10 and 8 respectively. Currently, the father neither sees nor communicates with them.
The parties commenced cohabitation (and married) in May 1997. They separated in June 2006. They have been involved in litigation from shortly after the date of separation. The history of litigation is set out in paragraph 6 of the mother's affidavit sworn 4 March 2011.
On 12 December 2008, orders were made – by consent – to the effect that the children live with the mother and that she have sole parental responsibility for them. Other orders were made (although not by consent) on that day, including an order that the father pay the mother's costs fixed at more than $19,750. I shall refer to the orders made on 12 December 2008 as "the Final Orders".
The Final Orders did not provide for the father to either spend time or communicate with the children. The reasons for that omission are discussed below.
The Final Orders were made by Federal Magistrate Riethmuller sitting…

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 Lancet and Deaves

Details

AGLC: Lancet and Deaves [2011] FMCAfam 304
Case: [2011] FMCAfam 304
Decision Date: 11 March 2011

CaseChat Overview and Summary

The case of Lancet and Deaves was heard by the Family Court of Australia. The matter involved a dispute between a father and mother over parenting arrangements and the management of the child's education. The father filed an application seeking to have the child's primary residence changed and to alter the arrangements concerning the child's schooling. The mother opposed the application, arguing that the changes proposed by the father were not in the child's best interests.

The legal issues before the court were whether the proposed changes to the residence and education arrangements were in the child's best interests, as required by the Family Law Act 1975. The court had to consider the specific circumstances of the child and the respective positions of both parents. The court also needed to assess the evidence presented by both parties, including expert opinions on the child's educational needs and the impact of any changes on the child's welfare.

The Family Court, after carefully considering the evidence and submissions from both parties, found that the proposed changes to the residence and educational arrangements were not in the best interests of the child. The court determined that the current arrangements provided a stable environment for the child, which was crucial for the child's well-being. The judge also highlighted the importance of maintaining consistency in the child's education and living situation. Consequently, the court dismissed the father's application and ordered him to pay the mother's costs in the sum of $2000.00, to be paid by a specified date.

Orders

Orders of the court

The father’s application filed 24 January 2011 be dismissed.

The father pay the mother’s costs fixed in the sum of $2000.00 – such costs to be paid by not later than 11 September 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.