Potter and Ross and Ors - [2008] FamCA 894

FAMILY COURT OF AUSTRALIA

POTTER & ROSS AND ORS

[2008] FamCA 894

FAMILY LAW – CHILDREN – With whom children live – complex inter-relationships of parties – orders made by consent – commitment by parties to counselling and treatment – ongoing monitoring by Independent Children’s Lawyer

Family Law Act 1975 (Cth) Division 12A
Family Law Rules 2004 (Cth) r 10.15A

In the marriage of Jurss and Jurss (1976) FLC 90-041

APPLICANT FATHER:

Mr Potter

1^st RESPONDENT MOTHER:

Ms Ross

2^nd RESPONDENT MOTHER:

Ms Wilson

RESPONDENT FATHER:

Mr Olsen

RESPONDENT GRANDPARENTS:

Mr and Mrs Olsen (Snr)

FILE NUMBER:

BRC

2007

DATE DELIVERED:

3 September 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

3 September 2008

REPRESENTATION

APPLICANT FATHER:

Mr Potter In person

COUNSEL FOR THE FIRST

RESPONDENT:

Ms Carmody

SOLICITOR FOR THE FIRST RESPONDENT:

Carne Reidy Herd

SOLICITOR FOR THE SECOND RESPONDENT:

Mr Rennick, Greenhalgh Pickard Solicitors

RESPONDENT FATHER:

Mr Olsen in person

RESPONDENT GRANDPARENTS:

Mr and Mrs Olsen (Snr) in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT IN RESPECT OF THE CHILD N BORN … JUNE 2000 (“N”) THAT:

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
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 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 DIRECTED THAT:

The Minutes of Consent remain upon the Court file.
A transcript of the relevant portions of the hearing of this matter on 28 and 29 August 2008 and the evidence of Mr Potter given on 28 August 2008 shall be forwarded to the parties and to those people named in the Minutes of Consent.

IT IS NOTED THAT:
(a)By reference to the factors indicated by Justice Murphy during the earlier hearing of this matter on 28 and 29 August 2008, the court is satisfied that any allegations of abuse have, within the meaning of Rule 10.15A, been dealt with by the Minutes of Consent signed by the parties and the Independent Children's Lawyer.

MINUTES OF CONSENT

BY CONSENT OF THE PARTIES IT IS HEREBY ORDERED:

That the child N born … June 2000 (“N”) live with the Mother.
Until unsupervised time between the Father and N commence in accordance with Order 3(e) below then the Mother…

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 Potter and Ross and Ors

Details

AGLC: Potter and Ross and Ors [2008] FamCA 894
Case: [2008] FamCA 894
Decision Date: 3 September 2008

CaseChat Overview and Summary

In the matter of *Potter and Ross and Ors*, heard before Murphy J, the dispute concerned the welfare of a child, N, born in June 2000. The proceedings involved applications that were ultimately resolved by consent.

The court was required to make orders concerning the child N, pursuant to the *Family Law Rules 2004*. The court also had to consider the dismissal of all extant applications, the return of subpoenaed documents and exhibits, and the inclusion of particulars regarding obligations and consequences of contravention of the orders, as provided by sections 65DA(2) and 62B of relevant legislation.

By consent of the parties, Murphy J ordered that declarations and notations be made in terms of the "Minutes of Consent" document. All other applications were dismissed, and subpoenaed documents and exhibits were to be returned. The court also directed that a Fact Sheet detailing the particulars of the obligations and consequences of contravening the orders be attached to and included within the orders. Furthermore, the Minutes of Consent were to remain on the court file, and a transcript of relevant portions of the hearing and specific evidence was to be forwarded to the parties and named individuals.

Orders

Orders of the court

IT IS ORDERED BY CONSENT IN RESPECT OF THE CHILD N BORN … JUNE 2000 (“N”) THAT:

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

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 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 DIRECTED THAT:

The Minutes of Consent remain upon the Court file.

A transcript of the relevant portions of the hearing of this matter on 28 and 29 August 2008 and the evidence of Mr Potter given on 28 August 2008 shall be forwarded to the parties and to those people named in the Minutes of Consent.

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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