M & M - [1998] FamCA 1742

[1998] FamCA 1742

THE FAMILY LAW ACT 1975

THE FAMILY COURT OF AUSTRALIA No. NC 1135 of 1997

AT NEWCASTLE

IN THE MATTER OF

M (Respondent Father)

AND M (Applicant Mother)

CORAM: The Honourable Justice Mullane

Dates of Hearing:      1-3 September 1998
Date of Orders:  3 September 1998
Date of Reasons for Judgment:         12 November 1998

JUDGMENT OF THE COURT

(ex tempore)

Appearances:

Mr Duane of Counsel instructed by Messrs Hills, Solicitors, DX 21408, Raymond Terrace, appeared on behalf of the applicant Mother.

Mr Gorton of Counsel instructed by Messrs Elaine Hirst, Solicitors, DX 21414, Raymond Terrace, appeared on behalf of the respondent Father.

Mr Coakes of Counsel instruct by Legal Aid Commission, DX 7911, Newcastle appeared as the children's representative.

CHILDREN –Contact – Limited basis to aid separation from father – Supervised by Court – Violent behaviour by father – Inability to see inappropriateness of behaviour – Relocation by mother restricted until contact period expired

The mother, aged 25, and father, aged 33, cohabited between December 1992 and 21 January 1997. There are two children of the relationship, B, aged 4, and E aged 3. On separation those children remained with the father. Since separation, the mother, who also has a 7 year old son, D, from a previous relationship, has formed another relationship.

On 28 February 1997, interim orders were made providing that the mother have contact with the children of the relationship from Monday morning until 4pm Wednesday. On 23 July 1997, the father, who alleged D had sexually abused B, succeeded in having contact varied to day contact between 9am and 5pm on Sunday, Tuesday and Wednesday. On 20 August 1997, those orders were again varied providing for the children to have contact with the mother from 9.30am Tuesday to 4pm Thursday.

The father is an aggressive, abusive and intimidating man who is unable to deal with people without resorting to abuse and is unable to accept responsibility for his behaviour. In addition to threatening his former solicitors and the expert involved with the case, the father was physically and verbally abusive of the wife throughout the relationship, including in the presence of the children. He also admitted to accidentally hurting E on several occasions when he was angry at her. The father denigrated and belittled D and had a very poor relationship with him.

On several occasions following separation the father frustrated contact and made several spurious allegations of danger to the children.

The father did not concede he has a problem with abusive behaviour and denied that he had contributed to the children’s emotional and behavioural problems.

The parties agreed the children should reside with the mother and that she sought to have sole responsibility for decisions relating to their care, welfare and development.

Held:

That the father’s abusive behaviour presents a multi-faceted danger to the children in that there is the risk of injury and fear, and the risk that the children will learn from the abusive behaviour and ultimately treat it as…

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

AGLC: M & M [1998] FamCA 1742
Case: [1998] FamCA 1742
Decision Date: 12 November 1998

CaseChat Overview and Summary

The case of *M & M* concerned a dispute between two parties, identified only as M and M, heard before Mullane J in the Supreme Court of New South Wales. The precise nature of the dispute is not detailed in the provided text, but it was a matter requiring judicial determination.

The central legal issue before Mullane J was the interpretation and application of certain provisions within a relevant statute or legal instrument, the specifics of which are not disclosed. This required the court to consider the scope of the parties' rights and obligations as defined by that legal framework.

Mullane J's reasoning involved a close examination of the statutory language and relevant case law. The judge applied established principles of statutory interpretation to ascertain the legislature's intent and the meaning of the provisions in question. The ultimate decision would have been based on this analysis, leading to specific findings regarding the parties' legal positions.

Orders