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Mason and Wilson (No. 2)

Mason and Wilson (No. 2)

Case [2008] FamCA 1191 19 December 2008

Statutory Construction

Family Law

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

MASON & WILSON (NO. 2)

[2008] FamCA 1191

FAMILY LAW – CHILDREN – Sole parenting order – Rebuttal of presumption of equal shared parental responsibility

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA(1) and (4)
The Evidence Act 1995 (Cth) s 140(1)

Neil v Nott (1994) 121 ALR 148
Re F: Litigants in Person Guidelines (2001) FLC ¶93-072
Johnson v Johnson (1997) FLC ¶92-764
Dobbs & Brayson (No 2) (2007) FLC ¶93-354
Crispen and Crispen [2008] FamCAFC 14
Newlands & Newlands (2007) 37 Fam LR 103
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Goode v Goode (2006) FLC 93-286

APPLICANT:

Ms Mason

RESPONDENT:

Mr Wilson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

6729

2007

DATE DELIVERED:

19 December 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

YOUNG J

HEARING DATE:

18, 19 & 25 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

MR HOWE

SOLICITOR FOR THE RESPONDENT:

JKB LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR CURTAIN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

C.E. FAMILY LAWYERS

Orders

IT IS ORDERED:

THAT pursuant to s61DA(1) and (4) of the Family Law Act 1975 (Cth) the presumption that it is in the best interests of the children J born … July 2001 and N born … November 2003 (“the children”) for the mother and father to have equal shared parental responsibility be rebutted.
THAT the mother have sole parental responsibility for the children.
THAT each of the mother and father communicate with the other by e-mail or SMS immediately should either of the children suffer any significant medical event or emergency.
THAT paragraphs 5 and 6 of the Order of Senior Registrar FitzGibbon made 31 July 2007 be discharged.
THAT all extant applications, both interim and final be otherwise dismissed and the proceedings be removed from the docket of Young J.
Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
THAT should no appeal be lodged against this Order within a period of one (1) calendar month then the appointment of the Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

MS MASON

Applicant

And

MR WILSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ISSUES

This court hearing and judgment were necessary to determine complex parenting and children’s issues concerning J born in July 2001 and N born in November 2003 (“the children”).
The mother, Ms Mason, was born in November…

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 Mason and Wilson (No. 2)

Details

AGLC: Mason and Wilson (No. 2) [2008] FamCA 1191
Case: [2008] FamCA 1191
Decision Date: 19 December 2008

CaseChat Overview and Summary

In *Mason and Wilson (No. 2)*, the Honourable Justice Young of the Family Court of Australia considered an application concerning the parental responsibility for two children, J and N. The dispute centred on whether the presumption of equal shared parental responsibility, as provided for by the *Family Law Act 1975* (Cth), should be rebutted in favour of one parent having sole responsibility.

The primary legal issue before the court was whether the presumption of equal shared parental responsibility was in the best interests of the children, and if not, what orders for parental responsibility should be made. The court was also required to consider the discharge of previous orders and the role of an Independent Children’s Lawyer.

Justice Young found that the presumption of equal shared parental responsibility was not in the best interests of the children and therefore rebutted it. The court ordered that the mother have sole parental responsibility for the children. Further orders stipulated that both parents must communicate via email or SMS immediately in the event of any significant medical event or emergency concerning the children. Previous orders made by Senior Registrar FitzGibbon were discharged, and all other extant applications were dismissed. The court also noted that particulars of the obligations and consequences of contravention were set out in an annexed Fact Sheet, and the appointment of the Independent Children’s Lawyer would be discharged if no appeal was lodged within one month.

Orders

Orders of the court

IT IS ORDERED:

THAT pursuant to s61DA(1) and (4) of the Family Law Act 1975 (Cth) the presumption that it is in the best interests of the children J born … July 2001 and N born … November 2003 (“the children”) for the mother and father to have equal shared parental responsibility be rebutted.

THAT the mother have sole parental responsibility for the children.

THAT each of the mother and father communicate with the other by e-mail or SMS immediately should either of the children suffer any significant medical event or emergency.

THAT paragraphs 5 and 6 of the Order of Senior Registrar FitzGibbon made 31 July 2007 be discharged.

THAT all extant applications, both interim and final be otherwise dismissed and the proceedings be removed from the docket of Young J.

Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

THAT should no appeal be lodged against this Order within a period of one (1) calendar month then the appointment of the Independent Children’s Lawyer be discharged.

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.

Citations

AGLC Citation

Mason and Wilson (No. 2) [2008] FamCA 1191

Most Recent Citation

Wilson and Mason [2009] FamCAFC 160

Cases citing this decision · 1 of 1 shown

Wilson and Mason
[2009] FamCAFC 160

…[2008] FamCA 1191…

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Cases cited in this decision · 14 of 14 shown

Crispen & Crispen
[2008] FamCAFC 14 Para 1

…Crispen and Crispen [2008] FamCAFC 14 was a Full Court appeal from the decision of the Magistrate’s Court of Western Australia to rebut the presumption of equal shared parental responsibility and vest the mother solely with the responsibility for making all major long term decisions. The father was to have responsib…
Vetter v Lake Macquarie City Council
[2001] HCA 12 Para 6

…law and in the context of the respective power or capacity of a party to produce or counter such evidence ( Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454).…
Johnson v Johnson
[2000] HCA 48 Para 1

…modified the guidelines to be used in proceedings where a litigant appears without representation from what was previously said by the Full Court in Johnson v Johnson (1997) FLC ¶92-764.…
Neil v Nott
[1994] HCA 23 Para 2

…where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. ( Neil v Nott (1994) 121 ALR 148 at 150) ; (i)where the interests of justice and the circumstances of the case require it, a judge may: §draw attention to the law applied by the cour…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCATrans 297 Para 4

…Subsequently the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172: “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved…
Smith v New South Wales Bar Association
[1992] HCA 36 Para 1

…of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313: “By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only ava…
Abalos v Australian Postal Commission
[1990] HCA 47 Para 1

…v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.…
Jones v Hyde
[1989] HCA 20 Para 1

…y functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.…
Briginshaw v Briginshaw
[1938] HCA 36 Para 3

…In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said: “Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established ind…
Briginshaw v Briginshaw
[1938] HCA 34 Para 3

…In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said: “Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or es…
Goode v Goode
[2006] FMCA 13496 Para 1

…In addition Newlands referred to the judgment in Goode v Goode (2006) FLC 93-286 where the Full Court at 80,894 commented upon those paragraphs from B and B saying: 35.“Whilst we consider this is still a correct description of the concomitance of parental responsibility where no order has been made by a court, we do no…
[1927] AC 37
[1927] AC 37 Para 1

…e appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.…
[1999] 1 WLR 1360
[1999] 1 WLR 1360 Para 6

…em. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere ” .…
[1987] AC 114
[1987] AC 114 Para 3

…outh Australian cases of Minagall v Ayres [1966] SASR 151 at 156, Jobst v Inglis (1986) 41 SASR 399 at 417 and Angaston and District Hospital v Thamm (1987) 47 SASR 177 at 178-179. In the last mentioned case King J. said at pp. 178-179: ‘The principle of law which was expressed in Minagall v Ayres and which was accep…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
60CA, 60CC, 61DA(1) 4 mentions (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 2)
Family Law Reform Act 1995 (Cth)
1 mention (from Para 3)