Melton and Hurley - [2017] FamCA 346

FAMILY COURT OF AUSTRALIA

MELTON & HURLEY

[2017] FamCA 346

FAMILY LAW – CHILDREN – With whom the child shall live – Where the mother makes allegations that the child was sexually abused by the father – Where the mother video recorded the child’s statements on several occasions – Where the mother claims the child will be at an unacceptable risk of harm in the father’s care – Where no unacceptable risk was found – Where it is found that the mother’s belief that the father has abused the child is not genuine – Where the risk of psychological harm if the child remains with the mother is unacceptable – Where the child will have no relationship with the father if she remains with the mother – Where the child shall live with the father – Where the father has sole parental responsibility of the child.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Jones v Dunkel (1959) 101 CLR 298
M v M (1988) 166 CLR 69
Russell & Close FamCAFC 25 June 1993 (unreported)
SCVG & KLD (2014) FLC 93-582

APPLICANT:

Mr Melton

RESPONDENT:

Ms Hurley

INDEPENDENT CHILDREN’S LAWYER:

Arlene Gomes

FILE NUMBER:

BRC

503

2013

DATE DELIVERED:

25 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

3 - 7 April 2017

REPRESENTATION

FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Rice Naughton McCarthy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Order

All previous parenting orders are discharged.
The father shall have sole parental responsibility for all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”) in respect of the child B born … 2012 (“the child”).
In the exercise of the father’s sole parental responsibility he shall:
(a)       Inform the mother in writing (via email) about decisions to be made 21 days prior to making any decisions, save in the case of an emergency and then such notice to be provided as soon as practicable.
(b)       Seek a response form the mother in writing about the decision to be made.
(c)       The mother shall have 7 days to respond to the father’s email correspondence.
(d)       The father shall consider the mother’s response and keep in mind the best interests of the child as his paramount consideration.
(e)       The father shall inform the mother is writing as to the decision he has made.
The child shall live with the father.
The mother shall spend time and communicate with the child, at all times as may be agreed between the mother and father in writing and failing agreement as follows:
(a) For a period of not less than one (1) month from the date of this Order the child shall not spend time and communicate with the mother except for:
(i)Sending…

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 Melton and Hurley

Details

AGLC: Melton and Hurley [2017] FamCA 346
Case: [2017] FamCA 346
Decision Date: 25 May 2017

CaseChat Overview and Summary

Melton and Hurley concerned a dispute between two parties, Melton and Hurley, heard before Carew J in the Supreme Court of New South Wales. The precise nature of the dispute is not detailed in the provided text, but it involved a legal disagreement requiring judicial determination.

The central legal issue before Carew J was to determine the rights and obligations of the parties in relation to the matter in dispute. This required the Court to interpret and apply relevant legal principles to the facts as presented.

Carew J's reasoning and the legal principles applied are not elaborated upon in the provided text. The judgment ultimately led to specific orders being made by the Court, the details of which are also not provided.

Orders