Pryor and Judd - [2016] FamCA 820

FAMILY COURT OF AUSTRALIA

PRYOR & JUDD

[2016] FamCA 820

FAMILY LAW- CHILDREN – Where the father partially engages with final hearing – Where the father seeks an adjournment via email – When the father seeks an adjournment because he is sick – Where the father only appears on the first day of hearing – Where the hearing proceeds undefended – Where there is family violence between the parties – Where the father has criminal convictions for personal violence offences – Where the child visits the father in prison – Where the child discloses physical violence perpetrated by the father – Where the father continues to threaten the mother – Where the father has a propensity to act in a violent and abusive manner – Where there is an AVO protecting the mother from the father – Where that AVO expires – Where the child expresses views on parenting arrangements – Where the child’s views are influenced by the father – Where the father pressures the child in relation to his views on care arrangements – Decision to give no weight to the child’s expressed views – Where the mother protects the child from her feelings about the father – Where the father does not take the opportunity to have supervised contact with the child – Ordered that the mother have sole parental responsibility – Ordered that the child live with the mother – Ordered that the child spend no time with the father – Ordered that the father is restrained from approaching the mother and the child

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT:

Ms Pryor

RESPONDENT:

Mr Judd

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

FILE NUMBER:

(P)NCC

3004

2014

DATE DELIVERED:

28 September 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

22-23 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bithrey

SOLICITOR FOR THE APPLICANT:

Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

Orders

That all prior parenting Orders in relation to B born … 2005 (“the child”) are discharged.
That MS PRYOR (“the mother”) have sole parental responsibility for the child.
That the child live with the mother.
That the child spend no time with MR JUDD (“the father”).
Pursuant to s 68 of the Family Law Act the father is restrained from entering or remaining in:
(a) Any residence of the child; and
(b)Any place of education of the child including but not limited to Suburb C Public School, Before and After School Care (OOSH Care) and Vacation Care.
That the father shall within 28 days of these Orders file and serve any written response on which he relies to the Application by the mother for her costs [Order 5 Amended Initiating Application filed 21 December 2015].

Note: The form of the order is subject to the entry of the order in the Court’s…

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 Pryor and Judd

Details

AGLC: Pryor and Judd [2016] FamCA 820
Case: [2016] FamCA 820
Decision Date: 28 September 2016

CaseChat Overview and Summary

In the matter of *Pryor and Judd*, heard before Cleary J, the dispute concerned parenting orders for a child, B. The mother, Ms Pryor, sought orders for sole parental responsibility, that the child live with her, and that the child spend no time with the father, Mr Judd. The mother also sought orders restraining the father from entering or remaining at the child's residence and places of education.

The court was required to determine whether it was in the child's best interests to discharge all prior parenting orders and make new orders granting the mother sole parental responsibility, with the child living with her and having no contact with the father. A further issue was whether the father should be restrained from attending the child's residence and educational facilities.

Cleary J applied the principles of the *Family Law Act* concerning the best interests of the child. The decision to grant sole parental responsibility and order no time spent with the father, along with the restraining orders, indicates the court found that such arrangements were necessary to protect the child's welfare. The specific nature of the restraining orders, prohibiting the father from the child's residence and educational settings, suggests a finding of risk or concern for the child's safety or well-being in the father's presence.

The court ordered the discharge of all prior parenting orders. Ms Pryor was granted sole parental responsibility for the child, and the child was ordered to live with her. The father was ordered to spend no time with the child. Furthermore, pursuant to s 68 of the *Family Law Act*, the father was restrained from entering or remaining at any residence of the child and any place of education of the child. The father was also ordered to file and serve any written response to the mother's application for costs within 28 days.

Orders

Orders of the court

That all prior parenting Orders in relation to B born … 2005 (“the child”) are discharged.

That MS PRYOR (“the mother”) have sole parental responsibility for the child.

That the child live with the mother.

That the child spend no time with MR JUDD (“the father”).

Pursuant to s 68 of the Family Law Act the father is restrained from entering or remaining in:

(a) Any residence of the child; and

(b) Any place of education of the child including but not limited to Suburb C Public School, Before and After School Care (OOSH Care) and Vacation Care.

That the father shall within 28 days of these Orders file and serve any written response on which he relies to the Application by the mother for her costs [Order 5 Amended Initiating Application filed 21 December 2015].

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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