O’Laughlin and O’Laughlin - [2012] FamCA 1033

FAMILY COURT OF AUSTRALIA

O’LAUGHLIN & O’LAUGHLIN

[2012] FamCA 1033

FAMILY LAW – CHILDREN – Parental responsibility– Where matter undefended by Father– Where Father’s previous problems with excessive alcohol consumption may have been responsible for his conviction of an offence against his step-daughter, resulting in prison time – Where Father losing interest in attending contact centre with children – Mother to have sole parental responsibility – Children to spend supervised time and communicate with Father at all times as may be agreed by the parties in writing.
APPLICANT:	Ms O’Laughlin

RESPONDENT:

Mr O’Laughlin

FILE NUMBER:

BRC

11707

2007

DATE DELIVERED:

30 November 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

30 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Flis, Solicitor of Rhonda Sheehy & Associates appearing for the Applicant Mother

COUNSEL FOR THE RESPONDENT:

There being no appearance by the Respondent Father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Carlton of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sarah Cleeland Family Lawyers

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

The children, B born … January 2004 and C born … July 2005 live with the Mother.

The Mother have sole parental responsibility for the care, welfare and development of the children and in the exercise of that responsibility the Mother proposes to:
a.notify the Father in writing prior to making decision about major long term issues in relation to the said children including, but not limited to, the said children’s formal education, religious education and health;
b.invite the Father to indicate his views in writing;
c.take the Father’s views into account in making such decision; and
d.inform the Father in writing of her decision.

The children spend supervised time and communicate with the Father at all times as may be agreed between the parties in writing.

The Father be restrained and an injunction be hereby granted restraining him from requesting the children to pass on messages to or making enquiries about the child D born … October 1998.

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 the 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 that publication of this judgment by this Court under the pseudonym O’Laughlin & O’Laughlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11707 of 2007

Ms O’Laughlin

Applicant

And

Mr O’Laughlin

Respondent

REASONS FOR JUDGMENT

This is an application on the part of Ms O’Laughlin for parenting orders in relation to two children of her marriage to the respondent, Mr O’Laughlin. I have had the opportunity of seeing the material in this case and…

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 O’Laughlin and O’Laughlin

Details

AGLC: O’Laughlin and O’Laughlin [2012] FamCA 1033
Case: [2012] FamCA 1033
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms O’Laughlin for parenting orders concerning her two children, B and C, against her husband, Mr O’Laughlin. The matter proceeded undefended as Mr O’Laughlin, despite being called three times, did not appear. The court had before it material indicating Mr O’Laughlin's past issues with excessive alcohol consumption, which may have contributed to a conviction for an offence against his step-daughter, resulting in a prison sentence.

The primary legal issues before the court were to determine the appropriate parenting orders for the children, specifically regarding parental responsibility and the nature and extent of contact between the children and their father. The court was required to consider the best interests of the children, taking into account the father's history and current engagement with the proceedings and the children.

Justice Bell, applying the principles of the *Family Law Act 1975* (Cth), including considerations outlined in section 60CC, and adopting the report of the family consultant, Mr E, found that the children were well looked after and happy with their mother. The court noted the father's lack of interest in attending court and his failure to see the children since May of that year, despite their availability for contact. The court considered the father's past behaviour and the potential risks, while also acknowledging the mother's generous offer of supervised contact. The court was also mindful of the decision in *Rosa & Rosa* [2009] FamCAFC 81.

The court ordered that the children live with the Mother and that the Mother have sole parental responsibility. The Mother was to notify the Father in writing of proposed decisions regarding major long-term issues, invite his views, take them into account, and inform him of her final decision. The children were to spend supervised time and communicate with the Father at all times as agreed in writing by the parties. The Father was also restrained from requesting the children to pass on messages or make enquiries about another child, D.

Orders