Linsdell and Linsdell - [2018] FamCA 596

FAMILY COURT OF AUSTRALIA

LINSDELL & LINSDELL

[2018] FamCA 596

FAMILY LAW – CHILDREN – Best interests of the children – Where the father has disengaged with the proceedings – where the father has been violent towards the child – where the father treats one child differently to the others – where there are concerns in regards to excessive discipline – where the father has limited insight into appropriate behaviour when in the presence of his children – where it is in the best interests of the children to spend no time with the father.

Family Law Act 1975 (Cth) ss 60CC, 61C(1), 61DA, 61B

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Linsdell

RESPONDENT:

Mr Linsdell

FILE NUMBER:

PAC

1244

2016

DATE DELIVERED:

9 August 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

19 June 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Higgins Lawyers

SOLICITOR FOR THE RESPONDENT:

No appearance by and for the Respondent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the mother have sole parental responsibility for the care, welfare and development of the children W born … 2004, X born … 2007, Y born … 2011 and Z born … 2013 (“the children”).
That the children live with the mother.
That the children spend no time with the father.

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 Linsdell & Linsdell 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 PARRAMATTA

FILE NUMBER: PAC1244/2016

Ms Linsdell

Applicant

And

Mr Linsdell

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the long term parenting arrangements in respect of 13 year old W, 11 year old X, seven year old Y and five year old Z (“the children”) the children of Ms Linsdell (“the mother”) and Mr Linsdell (“the father”).
The parents began living together in 2002 and separated on a final basis in June 2015.
The mother initiated these proceedings in March 2016 in a Local Court. The proceedings were transferred to the Family Court of Australia where they were identified as within the Magellan Protocol.[1]
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
In her Initiating Application the mother seeks sole parental responsibility for the children, that the children live…

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 Linsdell and Linsdell

Details

AGLC: Linsdell and Linsdell [2018] FamCA 596
Case: [2018] FamCA 596
Decision Date: 9 August 2018

CaseChat Overview and Summary

The Family Court of Australia, presided over by Hannam J, considered a dispute between a mother and father concerning the care, welfare, and development of their four children. The proceedings involved applications relating to parental responsibility and the children's living arrangements.

The central legal issues before the court were whether the mother should have sole parental responsibility for the children, where the children should live, and whether they should spend any time with the father. These determinations were to be made in accordance with the best interests of the children.

Hannam J ordered that the mother have sole parental responsibility for the children, W, X, Y, and Z. The court further ordered that the children live with the mother and spend no time with the father. These orders reflect the court's determination regarding the children's care, welfare, and development.

Orders

Orders of the court

That the mother have sole parental responsibility for the care, welfare and development of the children W born … 2004, X born … 2007, Y born … 2011 and Z born … 2013 (“the children”).

That the children live with the mother.

That the children spend no time with the father.

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

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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