Pope and Pope - [2010] FamCA 296

FAMILY COURT OF AUSTRALIA

POPE & POPE

[2010] FamCA 296

FAMILY LAW – INJUNCTION – s68B

Family Law Act1975 (Cth)

APPLICANT:

Mr Pope

RESPONDENT:

Ms Pope

FILE NUMBER:

SYC

5303

2008

DATE DELIVERED:

31 March 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan JR

HEARING DATE:

31 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

SOLICITOR FOR THE RESPONDENT:

Slade Manwaring Solicitors

Orders

Insofar as the Application in a Case of the father filed 25 February 2010 seeks Order 4, the application is dismissed.
That the father pay to the solicitor for the mother one half of the costs of the mother related to the application dismissed today assessed in the sum of $500.00. That payment is to be made within 2 months from today’s date.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5303 of 2008

MR POPE

Applicant

And

MS POPE

Respondent

REASONS FOR JUDGMENT

There is only one issue before the court. The father seeks that the mother be restrained, presumably under section 68B of the Family Law Act. The injunction is sought in an application filed 25 February 2010. That application also deals with subpoenas and some other things that apparently have been addressed elsewhere.
The order sought is that the mother immediately remove the sticker on her motor vehicle, registered number …. The sticker bears the words, “Men are idiots. I divorced their king!” The order sought goes on to require that the mother be restrained from putting that sticker on any motor vehicle which she uses to drive the child of the marriage, a daughter, born in January 1997.
Pursuant to Section 68B a Court may make such an order or grant such an injunction as it considers appropriate for the welfare of the child. Section 68B lives in Part VII of the Family Law Act and it is a provision to which the best interests of the child apply. There is a nice argument as to whether the best interests of the child are the paramount consideration but there is no doubt that they are relevant[1]. An injunction can be made under the section. It can be made unconditionally or on such terms as the court considers appropriate.
[1] Flanagan & Handcock (2001) FLC 93-074; Koldsjor & Addington [2009] FamCAFC 21
Not surprisingly, the particular type of injunction sought here is not mentioned in the section. The section refers to the personal protection of children and other things by way of example. “Welfare” is not a term defined in the Act. One determines what is in the best interests of a child is by reference to section 60CC. It says that there are primary considerations and additional considerations. The primary considerations are the benefit of a child having a meaningful relationship with both parents; and the need to protect…

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 Pope and Pope

Details

AGLC: Pope and Pope [2010] FamCA 296
Case: [2010] FamCA 296
Decision Date: 31 March 2010

CaseChat Overview and Summary

In the matter of Pope and Pope, the father sought orders concerning the children. The court was required to determine the father's application for specific orders relating to the children.

The central legal issue before the court was the father's application filed on 25 February 2010, specifically concerning Order 4. The court was tasked with deciding whether to grant or dismiss this particular aspect of the father's application.

The court dismissed the father's application insofar as it sought Order 4. The reasoning for this dismissal is not detailed in the provided text. The court ordered the father to pay one half of the mother's costs associated with the dismissed application, with the amount assessed at $500.00, payable within two months.

Orders

Orders of the court

Insofar as the Application in a Case of the father filed 25 February 2010 seeks Order 4, the application is dismissed.

That the father pay to the solicitor for the mother one half of the costs of the mother related to the application dismissed today assessed in the sum of $500.00. That payment is to be made within 2 months from today’s date.

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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