Mink and Lamb - [2007] FamCA 715

FAMILY COURT OF AUSTRALIA

MINK & LAMB

[2007] FamCA 715

FAMILY LAW - CHILDREN – Parental responsibility – With whom children spend time – Orders - Variation

APPLICANT:

MR MINK

RESPONDENT:

MS LAMB

FILE NUMBER:

NCF

570

2003

DATE DELIVERED:

29 June 2007

PLACE DELIVERED:

Coffs Harbour

JUDGMENT OF:

Bell J

HEARING DATE:

27 & 28 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Laurie of Counsel

SOLICITOR FOR THE APPLICANT:

Piper Craig Henry Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Priestley of Counsel

SOLICITOR FOR THE RESPONDENT:

Susan Green Solicitor

Orders

The mother have sole parental responsibility for the children, a daughter born in December 1995 and a son born in May 1997
The Order of 25 August 2004 be varied to provide that the father communicate by telephone with the children from 6.30pm until 7.00pm on Tuesday of each week.
The mother is to facilitate any attempt on the part of the children to communicate with their father by telephone.
For the purpose of the time the children spend with the father in accordance with the Order of 25 August 2004, the father is to be responsible for collecting the children from and returning the children to the mother’s residence.
All applications are otherwise dismissed.
That 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 person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bell delivered this day will for all publication and reporting purposes be referred to as Mink and Lamb

FAMILY COURT OF AUSTRALIA AT COFFS HARBOUR

FILE NUMBER: NCF 570 of 2003

MR MINK

Applicant

And

MS LAMB

Respondent

REASONS FOR JUDGMENT

This is an amended, amended, amended application for various orders sought by one Mr Mink hereinafter referred to in the application in relation to two children of his marriage to the mother, Mrs Mink, also now known as Lamb.
Very briefly this matter came before the Court some years ago after the parties had commenced cohabitation in 1995, married at 1996 and two children were born of such union, they being a daughter born in December 1995 and a son born in May 2997. They separated in 2002; reconciled on one occasion at least but thereafter have lived separately and apart.
The matter came before this Court eventually in 2004 when Moore J on 25 August 2004 made various orders in relation to contact by the father with the children. I incorporate in these my reasons for judgment to that order. We have endeavoured to ascertain the original Court file order but am unable to do so. It is around but we cannot find it so I am relying upon an exhibit to one of the affidavits…

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 Mink and Lamb

Details

AGLC: Mink and Lamb [2007] FamCA 715
Case: [2007] FamCA 715
Decision Date: 29 June 2007

CaseChat Overview and Summary

In the matter of *Mink and Lamb*, Bell J of the Family Court of Australia considered an application by the mother for sole parental responsibility for the parties' two children, a daughter born in December 1995 and a son born in May 1997. The dispute concerned the allocation of parental responsibility and the nature of the father's communication with the children.

The court was required to determine whether to grant the mother sole parental responsibility for the children and to vary existing orders regarding the father's contact with them. Specifically, the court had to consider the appropriate arrangements for the father to communicate with the children and the practicalities of their time spent with him.

Bell J ordered that the mother have sole parental responsibility for the children. The court varied previous orders to stipulate that the father communicate with the children by telephone each Tuesday between 6:30 pm and 7:00 pm, with the mother to facilitate any such communication attempts by the children. Furthermore, the father was made responsible for collecting and returning the children to the mother's residence for any time spent with him. All other applications were dismissed. The orders included a fact sheet detailing the obligations, potential consequences of contravention, and sources of assistance for compliance, pursuant to ss 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

The mother have sole parental responsibility for the children, a daughter born in December 1995 and a son born in May 1997

The Order of 25 August 2004 be varied to provide that the father communicate by telephone with the children from 6.30pm until 7.00pm on Tuesday of each week.

The mother is to facilitate any attempt on the part of the children to communicate with their father by telephone.

For the purpose of the time the children spend with the father in accordance with the Order of 25 August 2004, the father is to be responsible for collecting the children from and returning the children to the mother’s residence.

All applications are otherwise dismissed.

That 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 person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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