LANE & STEINER - [2014] FamCA 214

FAMILY COURT OF AUSTRALIA

LANE & STEINER

[2014] FamCA 214

FAMILY LAW – CHILDREN – Child related proceedings – Evidence relating to child abuse or family violence – Order for no contact or communication between the father and the child

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A)

MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; (2010) FLC 93-424
In the Marriage of A (1998) FLC 92-800; 22 Fam LR 756
Re Andrew (1996) FLC 92-692

APPLICANT:

Ms Lane

RESPONDENT:

Mr Steiner

INDEPENDENT CHILDREN’S LAWYER:

Chris Wright

FILE NUMBER:

CSC

448

2010

DATE DELIVERED:

3 April 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

13 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Respondent in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Trevino

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Murray Lyons

Orders

All previous parenting orders in relation to J born … 2007, (“the child”) be vacated.
BY CONSENT Ms Lane, (“the mother”) have sole parental responsibility for the child.
BY CONSENT the mother have sole parental responsibility for decisions in relation to the long term and day to day care, welfare and development of the child included but not limited to:-
(a)the child’s education;
(b)the child’s Religious cultural upbringing;
(c)the child’s health; and
(d)the child’s name.
BY DETERMINATION on or before 1 June 2014 and each year thereafter, the mother shall forward to the father, by ordinary pre-paid post to his address at … B Street, C Town, Queensland, 4…, or to his email address at … between one and three current photographs of the child and a brief description of her health, welfare and education.
BY DETERMINATION the father shall not otherwise spend time or communicate with the child and consequently is restrained from communicating or approaching the child or the mother, without having express written consent, in advance, from the mother or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
BY DETERMINATION the Independent Children’s Lawyer forward a copy of these orders and the reasons upon which these orders are based, to the mother, within seven (7) days of the date of this order at the email address known to the Independent Children’s Lawyer.
Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
All other extant applications for orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these parenting 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…

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.

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Details

Case: [2014] FamCA 214
Decision Date

CaseChat Overview and Summary

In *Lane & Steiner* [2014] FamCA 214, the Family Court of Australia considered parenting orders concerning a child born in 2007. The proceedings involved the child's mother, Ms Lane (the applicant), and her father, Mr Steiner (the respondent). An Independent Children’s Lawyer was also appointed to represent the child's interests. The dispute centred on the extent of contact, if any, the father should have with the child, given a history of violence and family violence.

The court was required to determine three key issues: whether the child should spend any time with the father; whether the mother was psychiatrically, psychologically, or emotionally capable of coping with the father spending time with the child, in light of the relevant legal principles; and whether the father posed an unacceptable risk to the mother and/or the child. These issues were to be considered within the framework of the *Family Law Act 1975* (Cth), with the child's best interests as the paramount consideration.

Justice Benjamin noted the significant history of violence, threats, and intimidation by the father and his family against the mother and her new partner, including charges of arson and unlawful wounding. The father consented to orders for the child to live with the mother and for her to have sole parental responsibility. The mother sought orders for no time or communication between the father and the child, though she indicated a willingness to provide photographs and brief updates on the child's health and education. The father sought regular contact through a Children’s Contact Service. The Independent Children’s Lawyer supported the mother's position for limited or no contact.

By consent, the court vacated all previous parenting orders and made new orders granting the mother sole parental responsibility for the child. The mother was ordered to provide the father with one to three photographs of the child and a brief description of her health, welfare, and education annually. Crucially, the father was prohibited from spending time or communicating with the child, and was restrained from approaching the child or mother without the mother's express written consent or a court order. All other extant applications were dismissed.

Orders