MORDECH & MORDECH - [2017] FCCA 2950

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORDECH & MORDECH

[2017] FCCA 2950

Catchwords:
FAMILY LAW – Final parenting – with whom child will live – child’s best interests – where the father discontinues his application.

CHILD SUPPORT – Application for departure.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 64B, 65DAC, 65F, 67ZBB, 117

International Convention on the Rights of the Child, Article 23

Federal Circuit Court Rules 2001
Child Support (Assessment) Act 1989, s.116

Cases cited:
G & G [2002] FMCAfam 25
S & S [2003] FamCA 1133
Gyselman v Gyselman (1992) FLC 92-279
J & F [2002] FamCA 1067
Savery & Savery (1990) FLC 90-131
Philippe & Philippe (1978) FLC 90-433
Stevenson & Hughes [1993] FamCA 14

Other Articles Cited:

Blankenhorn, D, Fatherless America: Confronting our Most Urgent Social Problem. New York, NY: Basic Books, 1995
Alexander, M, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, New York: [Jackson, Tenn.]: New Press; Distributed by Perseus Distribution, January 16, 2012

Applicant:

MR MORDECH

Respondent:

MS MORDECH

File Number:

WOC 780 of 2015

Judgment of:

Judge Harman

Hearing date:

17 October 2017

Date of Last Submission:

17 October 2017

Delivered at:

Wollongong

Delivered on:

17 October 2017

REPRESENTATION

Solicitors for the Applicant:

Mr Murphy of Southern Coast Lawyers

Solicitors for the Respondent:

Ms Williams of Hansons Lawyers

ORDERS

The child, X born (omitted) 2012, shall live with his mother, Ms Mordech.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged, that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined, then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Each party shall, within 28 days, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide 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.

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Details

Case: [2017] FCCA 2950
Decision Date: 17 October 2017

CaseChat Overview and Summary

In the matter of Mordech & Mordech, heard before Judge Harman, the dispute concerned final parenting orders for a child, X, born in 2012. The father had discontinued his application, and the court was also dealing with an application for departure in relation to child support.

The primary legal issue before the court was to determine with whom the child, X, would live, considering the father's withdrawal of his application. The court also addressed the outstanding child support matters and the need for ongoing support services for the parties and the child.

The court ordered that the child, X, would live with his mother, Ms Mordech. All outstanding applications and responses were withdrawn and dismissed. The court also made orders for the return or destruction of exhibits and subpoenaed material upon the expiration of the appeal period. Furthermore, pursuant to section 13C of the *Family Law Act 1975*, both parties were ordered to attend family counselling through Relationships Australia and to complete an online program at www.uptoparents.org, providing proof of completion to all parties and the Independent Children’s Lawyer. The application for costs relating to a previous court appearance was dismissed.

Orders

Orders of the court

The child, X born (omitted) 2012, shall live with his mother, Ms Mordech.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged, that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.

Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:

(a) Attend at such times, dates and places as may be advised; and

(b) Pay such fees as may be charged;

to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.

In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined, then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.

Each party shall, within 28 days, register with www.uptoparents.org and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer (if appointed).

Dismiss the Application for Costs relating to the appearance before this Court 30 August 2017.

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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