Marsden & Marsden - [2015] FamCA 387

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN

[2015] FamCA 387

FAMILY LAW –INTERIM PROCEEDINGS – PARENTING – Application by the father for supervised time with the children – Where the father was the primary carer for the children pursuant to Consent Orders – Where the children were placed into the mother’s care after an alleged assault by the father on the children – Where the children have not had contact with the father since this incident – Where there are criminal proceedings on foot – Where the children have expressed views to the family consultant that they do not want to stay with the father – Father’s application dismissed – Orders for the preparation of a Family Report – Orders that the proceedings be expedited.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Marsden

INDEPENDENT CHILDREN’S LAWYER:

Messrs Robertson Solicitors

FILE NUMBER:

SYC

6980

2009

DATE DELIVERED:

22 May 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

8 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A- In person

SOLICITOR FOR THE APPLICANT:

N/A- In person

SOLICITOR FOR THE RESPONDENT:

N Cohen Solicitors

INDEPENDENT CHILDREN’S LAWYER

Messrs Robertson Solicitors

Orders

IT IS ORDERED

The hearing of the parenting dispute between the parents is expedited.
The Independent Children's Lawyer is to forthwith nominate a therapist for the children to attend upon so that therapy may commence forthwith as recommended by the Family Consultant. Each party shall thereafter do all things as may be necessary to ensure the children participate in such therapy.
The Orders made by Senior Registrar Campbell on 12 November 2014 continue pending further order.
All other parenting orders made under the Family Law Act1975 (Cth) and otherwise having effect are suspended pending further order.
I order that a Family Report be prepared by a Family Consultant of the Court. The report to address the matters which will be determined by me in chambers.
The Independent Children's Lawyer is to prepare, as soon as her workload reasonably permits, a list of matters which she suggests the Family Report address and she is to seek each of the parent’s approval for same. The Independent Children's Lawyer is to list any other matters sought by each of the parents which the Independent Children's Lawyer does not support and I will determine that matter in chambers.
Each party and the Independent Children's Lawyer have liberty to restore on short notice to the Court and to the other parties.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6980/2009

Mr Marsden

Applicant

And

Ms Marsden

Respondent

REASONS FOR JUDGMENT

Before the Court is an interim parenting application filed on 3 December 2014 by the father, Mr Marsden, against the mother, Ms Marsden, who is the…

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 Marsden & Marsden

Details

AGLC: Marsden & Marsden [2015] FamCA 387
Case: [2015] FamCA 387
Decision Date: 22 May 2015

CaseChat Overview and Summary

In the matter of *Marsden & Marsden*, heard by Le Poer Trench J, the dispute concerned parenting arrangements for the children. The court was required to determine the appropriate interim orders pending a final resolution of the parenting dispute.

The central legal issues before the court were the need to expedite the parenting dispute, the immediate commencement of therapy for the children as recommended by a Family Consultant, the continuation of existing orders, the suspension of other parenting orders, and the preparation of a Family Report to address specific matters. The court also considered the role of the Independent Children's Lawyer in preparing the scope of the Family Report and managing any disagreements between the parents on its content.

Le Poer Trench J ordered that the hearing of the parenting dispute be expedited. The Independent Children's Lawyer was directed to nominate a therapist for the children to commence therapy immediately, with both parents required to ensure the children's participation. Existing orders made by Senior Registrar Campbell on 12 November 2014 were to continue, while all other parenting orders were suspended pending further order. A Family Report was to be prepared by a Family Consultant, addressing matters to be determined by the judge in chambers. The Independent Children's Lawyer was also tasked with preparing a list of suggested matters for the report, seeking parental approval, and identifying any contested matters for the court's determination. Liberty was granted to all parties and the Independent Children's Lawyer to restore the matter on short notice.

Orders

Orders of the court

IT IS ORDERED

The hearing of the parenting dispute between the parents is expedited.

The Independent Children's Lawyer is to forthwith nominate a therapist for the children to attend upon so that therapy may commence forthwith as recommended by the Family Consultant. Each party shall thereafter do all things as may be necessary to ensure the children participate in such therapy.

The Orders made by Senior Registrar Campbell on 12 November 2014 continue pending further order.

All other parenting orders made under the Family Law Act 1975 (Cth) and otherwise having effect are suspended pending further order.

I order that a Family Report be prepared by a Family Consultant of the Court. The report to address the matters which will be determined by me in chambers.

The Independent Children's Lawyer is to prepare, as soon as her workload reasonably permits, a list of matters which she suggests the Family Report address and she is to seek each of the parent’s approval for same. The Independent Children's Lawyer is to list any other matters sought by each of the parents which the Independent Children's Lawyer does not support and I will determine that matter in chambers.

Each party and the Independent Children's Lawyer have liberty to restore on short notice to the Court and to the other parties.

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.