MATHERS & MATHERS - [2010] FamCA 717

FAMILY COURT OF AUSTRALIA

MATHERS & MATHERS

[2010] FamCA 717

FAMILY LAW – CHILDREN – parental responsibility – where the mother was not present at the proceedings – best interests – orders that the father have sole parental responsibility – where the orders were not sought in the applications before the Court – the mother given 28 days leave to apply in relation to the orders made

FAMILY LAW – CHILDREN – final orders by consent – with whom a child spends time – best interests – orders that the children live with the father and spend time with the maternal grandmother

Family Law Act 1975 (Cth) ss 60CC

MRR & GR [2010] HCA 4

APPLICANT:

Ms Mathers

RESPONDENT:

Mr Mathers

OTHER PARTY:

Ms Noble

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

532

2007

DATE DELIVERED:

6 August 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

6 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

n/a

SOLICITOR FOR THE APPLICANT:

n/a

COUNSEL FOR THE RESPONDENT:

Mrs Lindsay

SOLICITOR FOR THE RESPONDENT:

Tindall Gask & Bentley

COUNSEL FOR THE OTHER PARTY:

Mr Boehm

SOLICITOR FOR THE OTHER PARTY:

Moloney & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Services Commission of SA

Orders

UPON NOTING by way of final orders made by consent of the father and other party and in the absence of the mother:

BY CONSENT IT IS ORDERED THAT

The children C born … February 1999 and L born … May 2003 live with the father.
The children C and L spend time with the other party (maternal grandmother) as follows:
(a)from 5.00 pm Friday until 5.00 pm Sunday and occurring each fourth weekend commencing Friday 6 August 2010;
(b)from 10.00 am until 5.00 pm on Sunday and occurring each fourth Sunday commencing Sunday 22 August 2010;
(c)at such further and other times as agreed.
The Initiating Application of the other party (maternal grandmother) filed on 29 July 2008 is dismissed.
The father have sole parental responsibility for the two children C and L subject to the mother having leave to apply to the Court in relation to the final Order for sole parental responsibility within twenty-eight [28] days of service of the Order upon her and that service be effected by the father’s solicitors posting a copy of the sealed Order to the mother at her last known address for service.
The appointment of the Independent Children’s Lawyer is discharged two [2] months from today.
All matters are removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 532 of 2007

MS MATHERS

Applicant

AND

MR MATHERS

Respondent

AND

MS NOBLE

Other Party

EX-TEMPORE REASONS FOR JUDGMENT

I am making those orders by consent of the parties here…

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: [2010] FamCA 717
Decision Date: 6 August 2010

CaseChat Overview and Summary

In the Family Court of Australia, Dawe J considered a dispute concerning the parental responsibility and living arrangements for two children, C and L. The proceedings involved the father and another party, identified as the maternal grandmother, who had made an initiating application. The mother was not present at the proceedings.

The court was required to determine the best interests of the children in relation to final orders made by consent between the father and the maternal grandmother. Specifically, the court had to consider orders for the children to live with the father and spend time with the maternal grandmother, as well as the father having sole parental responsibility. A key issue was that the orders for sole parental responsibility were not sought in the applications before the court.

Dawe J made final orders by consent of the father and the maternal grandmother. The children were ordered to live with the father and spend time with the maternal grandmother on specified weekends. The maternal grandmother's initiating application was dismissed. Crucially, the father was granted sole parental responsibility for the children, however, the mother was given leave to apply to the court in relation to this specific order within 28 days of being served with the order. The Independent Children's Lawyer was discharged, and all matters were removed from the pending list.

Orders

Orders of the court

UPON NOTING by way of final orders made by consent of the father and other party and in the absence of the mother:

BY CONSENT IT IS ORDERED THAT

The children C born … February 1999 and L born … May 2003 live with the father.

The children C and L spend time with the other party (maternal grandmother) as follows:

(a) from 5.00 pm Friday until 5.00 pm Sunday and occurring each fourth weekend commencing Friday 6 August 2010;

(b) from 10.00 am until 5.00 pm on Sunday and occurring each fourth Sunday commencing Sunday 22 August 2010;

The Initiating Application of the other party (maternal grandmother) filed on 29 July 2008 is dismissed.

The father have sole parental responsibility for the two children C and L subject to the mother having leave to apply to the Court in relation to the final Order for sole parental responsibility within twenty-eight [28] days of service of the Order upon her and that service be effected by the father’s solicitors posting a copy of the sealed Order to the mother at her last known address for service.

The appointment of the Independent Children’s Lawyer is discharged two [2] months from today.

All matters are removed from the pending list.

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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