Muir and Newell - [2016] FCCA 1690

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUIR & NEWELL

[2016] FCCA 1690

Catchwords:
FAMILY LAW – Parenting – application by father – little involvement in child’s life by father to date – application to change surname of child – refusal of application for equal shared parental responsibility – child to live with mother and spend time with father pursuant to her wishes – issue of child’s passport – authorities examined – consideration and application of legal principles.

Legislation:

Adoption Act 2000 (NSW)

Births, Deaths and Marriages Registration Act 1996 (Vic)

Family Law Act 1975, ss.60B, 60CC

Cases cited:

Barker v Ferris [2008] FamCA 1112
Beach v Stemmler (1979) FLC 90-692
Chapman v Palmer (1978) 4 Fam LR 462
Cowley v Cowley [1901] AC 450
D v B [1977] 3 All ER 751
Darley & Darley [2016] FamCAFC 10
Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385
Koldsjor v Addington [2009] FamCAFC 21
Leggett & Willis [2014] FCCA 1779

Applicant:

MR MUIR

Respondent:

MS NEWELL

File Number:

MLC 5227 of 2012

Judgment of:

Judge Wilson

Hearing dates:

25 – 26 February 2016

Date of Last Submission:

26 February 2016

Delivered at:

Melbourne

Delivered on:

7 July 2016

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Ms A. Carter

Solicitors for the Respondent:	Taussig Cherrie Fildes
Counsel for the Independent Children's Lawyer:	Mr C. Dunlop
Solicitors for the Independent Children's Lawyer:	Trapski Family Law

ORDERS

All extant parenting orders are discharged.
The mother have sole parental responsibility for the child X born (omitted) 2002 (“the child”).
The child live with the mother.
The child spend time and communicate with the father in accordance with the child’s wishes and at the child’s instigation.
In the event that the child expresses a wish to spend time or communicate with the father, the mother must do all things to facilitate the time or communication in accordance with the child’s wishes.
The father be permitted to send to the child birthday and Christmas cards, photographs, gifts and information about the paternal family from time to time and the mother must do all things to ensure that the child receives such cards, photographs, gifts and information.
For the purposes of s.11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child X born (omitted) 2002 upon application by the mother and without requiring the consent of the father to the child travelling outside the Commonwealth of Australia or his signing the passport application, the Court being satisfied this order is in the best interests of the child.
Notwithstanding any provision in the Family Law Act 1975 (Cth) to the contrary, the mother be permitted to travel with the child outside of the Commonwealth of Australia without first obtaining the consent of the father.
The father must keep the mother notified of his residential address, email address and telephone number…

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 Muir and Newell

Details

AGLC: Muir and Newell [2016] FCCA 1690
Case: [2016] FCCA 1690
Decision Date: 7 July 2016

CaseChat Overview and Summary

In the matter of Muir and Newell, heard by Judge Wilson, the dispute concerned parenting orders for a child born in 2002. The orders reflect a significant shift in the child's living arrangements and parental responsibilities.

The court was required to determine the best interests of the child in relation to their residence, time spent with each parent, communication, and the ability to obtain a passport and travel internationally. Additionally, the court considered provisions for communication between the child and the father, the exchange of information, and the prevention of negative commentary about either parent in the child's presence.

Judge Wilson ordered that all existing parenting orders be discharged. The mother was granted sole parental responsibility, and the child was to live with her. The child's time spent with and communication with the father were to be determined by the child's wishes and at the child's instigation, with the mother facilitating such contact. The father was permitted to send cards, gifts, and information to the child, which the mother was to ensure the child received. Crucially, the court expressly permitted the issue of a passport for the child upon the mother's application without the father's consent, finding this to be in the child's best interests. The mother was also permitted to travel internationally with the child without the father's consent. The father was ordered to keep the mother informed of his contact details, and the mother was to ensure the child was informed of these. The mother was also ordered to notify the father of any serious illness or injury to the child. Finally, both parents were restrained by injunction from denigrating the other party to or in the presence of the child. All extant applications were dismissed.

Orders

Orders of the court

All extant parenting orders are discharged.

The mother have sole parental responsibility for the child X born (omitted) 2002 (“the child”).

The child live with the mother.

The child spend time and communicate with the father in accordance with the child’s wishes and at the child’s instigation.

In the event that the child expresses a wish to spend time or communicate with the father, the mother must do all things to facilitate the time or communication in accordance with the child’s wishes.

The father be permitted to send to the child birthday and Christmas cards, photographs, gifts and information about the paternal family from time to time and the mother must do all things to ensure that the child receives such cards, photographs, gifts and information.

For the purposes of s.11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child X born (omitted) 2002 upon application by the mother and without requiring the consent of the father to the child travelling outside the Commonwealth of Australia or his signing the passport application, the Court being satisfied this order is in the best interests of the child.

Notwithstanding any provision in the Family Law Act 1975 (Cth) to the contrary, the mother be permitted to travel with the child outside of the Commonwealth of Australia without first obtaining the consent of the father.

The father must keep the mother notified of his residential address, email address and telephone number and the mother must ensure the child is informed of same.

10.

The mother must immediately notify the father of any serious illness or injury suffered by the child.

11.

The mother and father themselves, their servants and agents be and are hereby restrained by injunction from denigrating, rebuking, belittling or speaking negatively about the other party to or in the hearing or presence of the child.

12.

All extant applications are dismissed.

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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