Lander & Ors and Bradbury & Anor - [2018] FamCA 387

FAMILY COURT OF AUSTRALIA

LANDER AND ORS & BRADBURY AND ANOR

[2018] FamCA 387

FAMILY LAW – CHILDREN – Interim proceedings – the application of the principles of Rice v Asplund – where the evidence does not establish that it is in the child’s best interests to change the present interim orders.

Family Law Act 1975 (Cth) s 60CC

Marsden & Winch (2009) 42 Fam LR 1
O’Brien & O’Brien [2017] FamCAFC 219
Rice and Asplund (1979) FLC 90-725

APPLICANT:

Ms Lander

2^nd APPLICANTS:

Ms B and Mr Lander

RESPONDENT:

Mr Bradbury

2^nd RESPONDENT

Mr Balsdon

INDEPENDENT CHILDREN’S LAWYER:

Mrs G Yeend

FILE NUMBER:

CAC

239

2017

DATE DELIVERED:

31 May 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

22 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

SOLICITOR FOR THE 2^ND APPLICANTS:

Self-representing

SOLICITOR FOR THE RESPONDENT:

Infinity Legal

SOLICITOR FOR THE 2^ND RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Yeend & Associates

Orders

The Applicant’s application filed 20 April 2018 is dismissed.
The Second Applicants’ application filed 23 April 2018 is dismissed.
The father's parenting response to an application in a case with respect to the child X, born … 2001, is withdrawn and dismissed.
The father’s response to an application in a case filed 7 May 2018 is otherwise dismissed.
Should the child fall ill in the mother's or father’s care and be unable to attend C Group then changeover will occur at a public place as agreed between the parties and in default of agreement, inside the Suburb D Police Station.
The proceedings are transferred to the Registrar’s list pending their removal for trial, or further application.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lander and Ors & Bradbury and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 239 of 2017

Ms Lander

Applicant

And

Ms B Lander and Mr Lander

2^nd Applicants

AND

Mr Bradbury

Respondent

AND

Mr Balsdon

2^nd Respondent

REASONS FOR JUDGMENT

Orders were made following contested interim proceedings before Judge Tonkin on 28 September 2017 for the child, Y, born in 2013, to live with the father and spend time with the mother during daytime periods each Wednesday, Friday and Saturday.
On 2 November 2017 consent terms were entered into varying those Orders to provide that Y would spend time with her mother each Wednesday during the day, each alternate Friday overnight and on the other…

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.

Keep reading for free

Create a free CaseChat account to read Lander & Ors and Bradbury & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 387
Decision Date: 31 May 2018

CaseChat Overview and Summary

In the matter of *Lander & Ors and Bradbury & Anor*, heard by Gill J, the applicants sought various orders concerning a child, X, born in 2001. The proceedings involved applications filed by the applicants on 20 and 23 April 2018, and a parenting response filed by the father on 7 May 2018.

The central legal issues before the court concerned the applications made by the parties and the father's parenting response. The court was required to determine the disposition of these applications and the parenting arrangements for the child X.

Gill J dismissed the applications filed by the applicants on 20 and 23 April 2018, as well as the father's parenting response filed on 7 May 2018, noting that the father's parenting response to an application in a case with respect to the child X was withdrawn and dismissed. The court also made specific provision for changeover arrangements should the child fall ill while in the care of either parent, stipulating that changeover would occur at a public place agreed between the parties, or at the Suburb D Police Station in default of agreement. The proceedings were subsequently transferred to the Registrar’s list pending their removal for trial or further application.

Orders

Orders of the court

The Applicant’s application filed 20 April 2018 is dismissed.

The Second Applicants’ application filed 23 April 2018 is dismissed.

The father's parenting response to an application in a case with respect to the child X, born … 2001, is withdrawn and dismissed.

The father’s response to an application in a case filed 7 May 2018 is otherwise dismissed.

Should the child fall ill in the mother's or father’s care and be unable to attend C Group then changeover will occur at a public place as agreed between the parties and in default of agreement, inside the Suburb D Police Station.

The proceedings are transferred to the Registrar’s list pending their removal for trial, or further application.

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

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.