MCLEAN & STEPHENS - [2014] FCCA 3130

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCLEAN & STEPHENS

[2014] FCCA 3130

Catchwords:
FAMILY LAW – Parenting – spend time with arrangements – application by paternal grandmother.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60H, 61DA, 65DAA, 65DAA(5), 69ZN, 69ZX(3)
International Convention on the Rights of the Child

Re F Litigants in Person Guidelines (2001) FLC 93-072
Burton & Churchin & Anor [2013] FamCAFC 180

Aldridge & Keaton (2009) FLC 93-421

Johnson & Page [2007] FamCA 1235

M & M [1988] HCA 68
B & B (1993) FLC 92-357
Dylan & Dylan [2007] FamCA 842

Other:

Bringing them home: the ‘Stolen Children’ Report (1997)

Applicant:

MS MCLEAN

Respondent:

MS STEPHENS

File Number:

PAC 1213 of 2013

Judgment of:

Judge Harman

Hearing date:

10 October 2014

Date of Last Submission:

10 October 2014

Delivered at:

Parramatta

Delivered on:

10 October 2014

REPRESENTATION

Solicitors for the Applicant:

Ms Li of Bainbridge Legal

The Respondent appeared in person

Counsel for the Independent Children’s Lawyer:

Mr Sperling

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Campbelltown Family Law

ORDERS

By consent make Orders in accordance with the Terms of Settlement marked Exhibit ‘B’ attached hereto.
IT IS NOTED that order 3(b) and order 10, whilst expressed as being made by consent, has been the subject of judicial determination as regards the commencement of time (order 3(b)) and the time for telephone communication (order 10).
Ms McLean shall be entitled to attend at the grandparent/family day event at X’s school in each year and shall ensure that she advises Ms Stephens not less than 48 hours prior to her attendance that she will be so attending and further Ms McLean shall be entitled to attend such other events at X’s school to which parents or other caregivers are invited or permitted to attend subject to the consent of Ms Stephens.
In addition to time that X will spend with Ms McLean in accordance with the above orders, X shall also, commencing January 2016, spend a period of time with Ms McLean from 10am 20 January to 4pm 25 January each year.
The Director of Family Consultancy is requested to arrange for Mr O (who prepared the Report in these proceedings and who indicated his willingness to do so) to meet with X as soon as reasonably practicable, to explain to him in terms that he will likely understand the orders made by the Court and to answer any questions that X may have with respect to the orders and future arrangements.
Ms Stephens shall upon being advised of an appointment for X to attend upon Mr O, ensure that X is presented for that interview.
Ms Stephens shall be at liberty to provide to X’s psychologist Ms T and to X’s school counsellor the Reasons for Judgment delivered today.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a…

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 MCLEAN & STEPHENS

Details

AGLC: MCLEAN & STEPHENS [2014] FCCA 3130
Case: [2014] FCCA 3130
Decision Date: 10 October 2014

CaseChat Overview and Summary

In the matter of MCLEAN & STEPHENS, heard before Judge Harman, the dispute concerned the terms of settlement between the parties. The court was presented with a consent order reflecting an agreement reached between McLean and Stephens.

The central legal issue before the court was to formally approve and record the agreed Terms of Settlement as a binding order of the court. This required the court to be satisfied that the settlement was entered into by the parties voluntarily and with full understanding of its implications.

Judge Harman, by consent of the parties, made orders in accordance with the Terms of Settlement. These terms, marked as Exhibit ‘B’ and attached to the court’s record, represented the agreed resolution of the dispute between McLean and Stephens.

Orders

Orders of the court

By consent make Orders in accordance with the Terms of Settlement marked Exhibit ‘B’ attached hereto.

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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