Mullett and Landell - [2008] FamCA 684

FAMILY COURT OF AUSTRALIA

MULLETT & LANDELL

[2008] FamCA 684

FAMILY LAW – CHILDREN – Final parenting – unopposed orders

APPLICANT:

Ms Mullett

RESPONDENT:

Mr Landell

FILE NUMBER:

MLC

3824

2008

DATE DELIVERED:

18 July 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

18 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D.J. Kent-Hughes

SOLICITOR FOR THE APPLICANT:

Hayden Legro Lawyers

FOR THE RESPONDENT:

No Appearance

Orders

IT IS ORDERED:

That the mother have sole parental responsibility for the children M born … June 2005 and J born … June 2007.
That the children live with the mother.
That the question of the respondent spending any time with either or both of the children be reserved with the effect that there is currently no order entitling him to spend time with the children or either of them.
That all outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Mullett & Landell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3824 of 2008

MS MULLETT

Applicant

And

MR LANDELL

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This matter, which concerns the children M, a son born in June 2005 and J, a daughter born in June 2007, comes before me in the Magellan direction list. Mr Kent-Hughes of counsel appears on behalf of the mother. There is no appearance by or on behalf of the respondent father. He was called at the door of the court and there was no response.
On the last occasion this matter was before the court, being 16 May 2008, the father did not appear either. A letter had been received by the court that morning which read as follows:
I will however convey to you my innocence of the allegations against me. My children have been taken away from my family and myself. I will love them forever. I will comply with the court's direction until such time as I will be in a financial position to apply for access to my children. [M] has been my son in every sense of the word except biological and I was to him his father, protector and provider for the past two and a half years. [J] is my biological daughter and I am extremely saddened that I have been denied access to her, my only daughter. Although this is not a legal document, I plead with you to take into account my position when you make your ruling.
Other matters in the letter advise that he would not be attending court on 16 May. The address for the father in the letter was given as … Road in H.
On 16 May 2008, I adjourned the matter to today and requested that a report be prepared by the Department of Human Services. That has been done.
I also ordered…

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 Mullett and Landell

Details

AGLC: Mullett and Landell [2008] FamCA 684
Case: [2008] FamCA 684
Decision Date: 18 July 2008

CaseChat Overview and Summary

In *Mullett and Landell*, heard before Bennett J, the dispute concerned the parental responsibility and living arrangements for two children, M and J. The court was required to determine who should have sole parental responsibility for the children and with whom they should live. Additionally, the court needed to consider whether the respondent father should have any time with the children.

Bennett J determined that the mother should have sole parental responsibility for both children and that they should live with her. The court reserved the question of the respondent spending any time with either or both of the children, meaning there was currently no order entitling him to do so. All outstanding applications were dismissed, and the proceedings were removed from the Active Pending Cases List.

Orders

Orders of the court

IT IS ORDERED:

That the mother have sole parental responsibility for the children M born … June 2005 and J born … June 2007.

That the children live with the mother.

That the question of the respondent spending any time with either or both of the children be reserved with the effect that there is currently no order entitling him to spend time with the children or either of them.

That all outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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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