LANDIN & EADES - [2013] FCCA 1276

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANDIN & EADES

[2013] FCCA 1276

Catchwords:
FAMILY LAW – Parenting – final and undefended orders – family violence – existing apprehended domestic violence order which precludes time between the child and the father – no order as to time between the child and the father.

FAMILY LAW – Practice and procedure – failure of Independent Children’s Lawyer to personally appear.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 67ZBB, 68L, 68LA, 68Q, 68R, 68S, 69ZW, 117

B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451
Mazorski & Albright [2007] FamCA 520
Green & Graham [2011] FamCAFC 248

Harrison & Woollard (1995) FLC 92-598
R & R (Children’s Wishes) [2002] FamCA 383
Bieganski (1993) FamLR 353
Rice & Asplund (1979) FLC 90-725

Johnson & Page [2007] FamCA 1235

Applicant:

MR LANDIN

Respondent:

MS EADES

File Number:

NCC 653 of 2012

Judgment of:

Judge Harman

Hearing date:

3 May 2013

Date of Last Submission:

3 May 2013

Delivered at:

Parramatta

Delivered on:

3 May 2013

REPRESENTATION

Solicitors for the Applicant:

Derham Houston Lawyers

Solicitors for the Respondent:

Cox West Lawyers

ORDERS

That the order pursuant to s.68L for the appointment of an Independent Children’s Lawyer be discharged.
The child, [X] born [in] 2002, shall live with his mother, Ms Eades.
Ms Eades shall have sole parental responsibility for [X].
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

THE COURT NOTES THAT:

A Notice of Discontinuance was filed by the Applicant on 1 May 2013.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

NCC 653 of 2012

MR LANDIN

Applicant

And

MS EADES

Respondent

REASONS FOR JUDGMENT

These are proceedings relating to care arrangements for a young person, [X] born [in] 2002. [X] has recently turned 10 years of age.

Parties

The parties to the proceedings were [X]’s parents. I have used that term notwithstanding that the Applicant in the proceedings, [X]’s father, Mr Landin, has filed a Notice of Discontinuance and does not appear before the Court today.
The matter was listed at 9.30am. Mr Landin has been called three times outside the Court precinct when the matter has proceeded at 10.30am and there has been no appearance by him. That is consistent with the Notice of Discontinuance filed in these proceedings marked Exhibit ‘C’ and which had been filed with the Court on 1 May…

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 LANDIN & EADES

Details

AGLC: LANDIN & EADES [2013] FCCA 1276
Case: [2013] FCCA 1276
Decision Date: 3 May 2013

CaseChat Overview and Summary

In the matter of *Landin & Eades*, heard before Judge Harman, the dispute concerned final parenting orders for a child, [X], born in 2002. The proceedings were undefended, and a significant factor was an existing apprehended domestic violence order that precluded any contact between the child and the father. Consequently, no orders were made regarding time between the child and the father. The court also addressed the failure of the Independent Children’s Lawyer to personally appear in the proceedings.

The primary legal issues before the court were to determine the final parenting arrangements for [X], specifically concerning with whom the child would live and who would hold parental responsibility. The court was also required to consider the implications of the apprehended domestic violence order on these arrangements and to address the non-appearance of the Independent Children’s Lawyer.

Judge Harman reasoned that given the undefended nature of the application and the pre-existing apprehended domestic violence order prohibiting contact between the child and the father, it was appropriate to make final orders. The court ordered that [X] live with his mother, Ms Eades, and that Ms Eades have sole parental responsibility for [X]. The court also noted that a Notice of Discontinuance had been filed by the Applicant on 1 May 2013.

The court made several orders, including the discharge of the order appointing an Independent Children’s Lawyer. It was ordered that [X] live with Ms Eades, who was granted sole parental responsibility. The court also included detailed particulars of obligations, consequences of contravention, and assistance for compliance within the orders, as set out in an attached Fact Sheet. All outstanding applications and responses were withdrawn and dismissed, with all issues removed from the hearing list.

Orders

Orders of the court

That the order pursuant to s.68L for the appointment of an Independent Children’s Lawyer be discharged.

The child, [X] born [in] 2002, shall live with his mother, Ms Eades.

Ms Eades shall have sole parental responsibility for [X].

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

THE COURT NOTES THAT:

A Notice of Discontinuance was filed by the Applicant on 1 May 2013.

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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