Modlin and Anstead & Anor - [2013] FamCA 955

FAMILY COURT OF AUSTRALIA

MODLIN & ANSTEAD AND ANOR

[2013] FamCA 955

FAMILY LAW – CHILDREN – Best Interests – Parental responsibility – Where the children live primarily with the mother and stepfather – Where there is a history of violence between the mother and father – Where it is in the child’s best interests that the mother and stepfather have equal shared parental responsibility for the children – Where the father shall have no parental responsibility for the children – Where the father shall spend no time with the children – Change of name – Where the children’s names should be changed to the stepfather’s name, retaining the father’s name as a middle name – Where the father is restrained from approaching the children’s school or residence – Where the mother and stepfather are restrained from denigrating the father to the children.

Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 68B & 68C.

Pavli & Beffa [2013] FamCA 144
Kemsley and Kemsley (1984) FLC 91-567; 10 Fam LR 125
McCall & Clark (2009) FLC 93-405
Champness & Hanson (2009) FLC 93-407
Barone & Barone [2012] FamCAFC 108
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Modlin

FIRST RESPONDENT:	Ms Anstead
SECOND RESPONDENT:	Mr Anstead
INDEPENDENT CHILDREN’S LAWYER:	Marsdens Law Group

FILE NUMBER:

SYC

4145

2012

DATE DELIVERED:

6 December 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

23-27 September 2013

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENTS:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms S Sloane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsden Law Group

Orders

(1)The mother, Ms Anstead, and stepfather, Mr Anstead, shall have equal shared parental responsibility for the children, X Modlin (dob: … 2004) and M Modlin (dob: … 2005) and the father, Mr Modlin, shall have no parental responsibility for them.
(2)The children shall live with the mother and stepfather.
(3)The children shall spend no time with the father.
(4)The father is restrained from approaching the children, any school which the children attend from time to time and the children’s residence, either in person or in writing or by electronic communication.
(5)The father is restrained from approaching the mother or any place she may reside or be employed from time to time and except for the circumstances and in the manner prescribed in Order 9 is restrained from communicating with the mother by any means whatsoever including in writing or by electronic communication.
(6)The father is restrained from approaching the stepfather or any place he may reside or be employed from time to time and except for the circumstances and in the manner prescribed in Order 9, is restrained from communicating with the stepfather by any means whatsoever including in writing or by electronic communication.
(7)Orders 4, 5 & 6 are made for the personal protection of the mother.
(8)The mother or the stepfather shall notify the father in writing at the paternal grandmother’s address of…

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 Modlin and Anstead & Anor

Details

AGLC: Modlin and Anstead & Anor [2013] FamCA 955
Case: [2013] FamCA 955
Decision Date: 6 December 2013

CaseChat Overview and Summary

In *Modlin and Anstead & Anor*, Loughnan J of the Family Court of Australia considered an application concerning the parental responsibility and living arrangements for two children, X Modlin and M Modlin. The dispute involved the children’s mother and stepfather, Ms Anstead and Mr Anstead, and their father, Mr Modlin. The proceedings were brought in the context of a history of violence between the mother and father.

The court was required to determine several key issues, including the allocation of parental responsibility for the children, where the children should live, and whether the father should have any time with the children. Additionally, the court considered applications for a change of the children’s surname, the imposition of restraining orders against the father, and orders preventing the denigration of the father by the mother and stepfather. The court also addressed the payment of costs associated with the proceedings, including the Independent Children’s Lawyer.

In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to the best interests of the child as outlined in sections 60B, 60CA, and 60CC. The court found that it was in the children’s best interests for the mother and stepfather to have equal shared parental responsibility, and for the children to live with them. Crucially, due to the history of violence and the need to protect the children, the court determined that the father should have no parental responsibility and spend no time with the children. The court also ordered that the children’s surname be changed to Anstead, retaining Modlin as a middle name, and made extensive restraining orders against the father for the protection of the mother and stepfather. Conversely, the mother and stepfather were restrained from denigrating the father to the children.

The court made detailed orders reflecting these findings. These included orders for equal shared parental responsibility and the children living with the mother and stepfather, with no time spent with the father. Restraining orders were made against the father, and also against the mother and stepfather regarding denigration. The court also ordered the change of the children’s names and addressed the payment of costs, including those of the Independent Children’s Lawyer and expert witnesses.

Orders

Orders of the court

(1) The mother, Ms Anstead, and stepfather, Mr Anstead, shall have equal shared parental responsibility for the children, X Modlin (dob: … 2004) and M Modlin (dob: … 2005) and the father, Mr Modlin, shall have no parental responsibility for them.

(2) The children shall live with the mother and stepfather.

(3) The children shall spend no time with the father.

(4) The father is restrained from approaching the children, any school which the children attend from time to time and the children’s residence, either in person or in writing or by electronic communication.

(5) The father is restrained from approaching the mother or any place she may reside or be employed from time to time and except for the circumstances and in the manner prescribed in Order 9 is restrained from communicating with the mother by any means whatsoever including in writing or by electronic communication.

(6) The father is restrained from approaching the stepfather or any place he may reside or be employed from time to time and except for the circumstances and in the manner prescribed in Order 9, is restrained from communicating with the stepfather by any means whatsoever including in writing or by electronic communication.

(7) Orders 4, 5 & 6 are made for the personal protection of the mother.

(8) The mother or the stepfather shall notify the father in writing at the paternal grandmother’s address of the current postal address for the stepfather and of any major long term decisions made in relation to the children, as to any of the following:

a) Medical issues requiring surgical or long-term treatment,

b) Change of school,

c) Change of residence from the NSW Central Coast without being required to provide an address, or

d) Placement of either or both of the children in long term, out of home care.

(9) Unless a Court otherwise orders, leave is granted to the father to serve documents in respect of proceedings under the Family Law Act in relation to the children on the mother and or the stepfather, care of the stepfather at the postal address provided from time to time under Order 8.

(10) The mother and stepfather shall do all things and sign all documents necessary for the children to be respectively known as X Modlin Anstead and M Modlin Anstead.

(11) The mother and stepfather are restrained from denigrating the father or members of the father’s family to the children or in the presence of the children.

(12) The mother and stepfather shall use their best endeavours to ensure that no other person denigrates the father or members of the father’s family to the children or in the presence of the children.

(13) The mother and stepfather are restrained from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.

(14) Within two months the father:

a) ensure that the payment made by him direct to Dr R by money order in the sum of $850 has been received by Dr R or cause a fresh payment in that sum to the Legal Aid Commission of NSW. In the latter event, upon receipt, Legal Aid NSW shall disburse $797.50 to Dr R and $52.50 to the mother and stepfather;

b) make payment to Dr R in the sum of $797.50 being half the cost of the attendance of Dr R to give oral evidence; and

c) make payment to the Legal Aid Commission of NSW in the sum of $6,591 being his half share of the costs of the Independent Children’s Lawyer.

(15) Within 14 days the mother and stepfather make payment to the Legal Aid Commission of NSW in the sum of $6,591 being their half share of the Independent Children’s Lawyer’s cost.

(16) Leave is granted to the parties to apply in relation to the wording of these orders within 28 days of the date of these orders, or such further time as the parties agree in writing, on giving at least seven days’ notice to the Court and each other.

(17) Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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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