Michaelson and Gainer - [2020] FamCA 284

FAMILY COURT OF AUSTRALIA

MICHAELSON & GAINER

[2020] FamCA 284

FAMILY LAW – CHILD RELATED PROCEEDINGS – UNDEFENDED – Where the mother seeks orders be made for sole parental responsibility and for the child to live with her – Where the father has notified the Court that he will not be participating in the proceedings – Where leave is granted for the matter to proceed on an undefended basis – Where the father has not spent time with the child since January 2018 – Where the mother relocated to Australia with the child with consent of the father in 2014 – Where the mother relocated to Asia with the child following orders being made in this Court in 2016 – Where the father currently resides in Country B. – Where the evidence of the mother is unchallenged – Orders made in accordance with the orders sought by the mother.

Family Law Act 1975 (Cth) s 43(1), 60B(1), 60CA, 60CC, 61DA, 65DAC(2) 65DAC(3), 65DAA

Cotton & Cotton (1983) FLC 91-330
Dundas & Blake (2013) FLC 93-552
Finton & Kimble [2017] FCWA 106
Jurchenko & Foster (2014) FLC 93-598
Marvel v Marvel (2010) 43 Fam LR 348
McCall & Clark (2009) FLC 93-405
Sigley v Evor (2011) 44 Fam LR 439
VR & RR (2002) FLC 93-099

APPLICANT:

Ms Michaelson

RESPONDENT:

Mr Gainer

FILE NUMBER:

SYC

1432

2016

DATE DELIVERED:

29 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

7 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Ben O'Sullivan of O’Sullivan Legal

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT

Orders

THE COURT ORDERS THAT:

Leave is granted for the matter to proceed on an undefended basis.

ON AN UNDEFENDED BASIS, THE COURT ORDERS THAT:

All previous parenting Orders be discharged.
Ms Michaelson (“the mother”) have sole parental responsibility for X born … 2007 (“the child”).
The child live with the mother.

THE COURT NOTES THAT:

A.The mother undertakes, subject to the wishes of the child, to facilitate the child spending reasonable time with Mr Gainer (“the father”), with such time to be spent in the country in which the mother resides in the event that contact is reasonably requested by the father.
B.The mother further undertakes, subject to the wishes of the child, to facilitate the child having reasonable contact with the father by electronic means in the event that contact is reasonably requested by the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02

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 Michaelson and Gainer

Details

AGLC: Michaelson and Gainer [2020] FamCA 284
Case: [2020] FamCA 284
Decision Date: 29 April 2020

CaseChat Overview and Summary

In *Michaelson and Gainer*, heard by McClelland DCJ, the dispute concerned parenting orders for a child, X. The mother, Ms Michaelson, sought to proceed with the matter on an undefended basis, indicating the father, Mr Gainer, was not actively participating in the proceedings.

The primary legal issue before the court was to determine the appropriate parenting arrangements for the child, X, in circumstances where the father was not represented or actively contesting the mother's application. This required the court to consider whether to grant leave for the matter to proceed undefended and, if so, what orders should be made regarding parental responsibility, living arrangements, and contact.

McClelland DCJ granted leave for the matter to proceed on an undefended basis. The court then discharged all previous parenting orders. The mother was granted sole parental responsibility for the child, and it was ordered that the child live with the mother. The court noted undertakings from the mother to facilitate reasonable time with the father, subject to the child's wishes, and to allow electronic contact, with any in-person contact to occur in the country of the mother's residence.

Orders

Orders of the court

THE COURT ORDERS THAT:

Leave is granted for the matter to proceed on an undefended basis.

ON AN UNDEFENDED BASIS, THE COURT ORDERS THAT:

All previous parenting Orders be discharged.

Ms Michaelson (“the mother”) have sole parental responsibility for X born … 2007 (“the child”).

The child live with the mother.

THE COURT NOTES THAT:

A. The mother undertakes, subject to the wishes of the child, to facilitate the child spending reasonable time with Mr Gainer (“the father”), with such time to be spent in the country in which the mother resides in the event that contact is reasonably requested by the father.

B. The mother further undertakes, subject to the wishes of the child, to facilitate the child having reasonable contact with the father by electronic means in the event that contact is reasonably requested by the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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