RABY & FISK - [2013] FamCA 436

FAMILY COURT OF AUSTRALIA

RABY & FISK

[2013] FamCA 436

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time or communicates – various options including therapy have failed – no relationship between father and children – contact refused.

Family Law Act 1975 (Cth)

R v R (Children’s wishes) (2002) FLC 93-108
Re: F (Litigants in person guidelines) (2001) FLC 93-072

APPLICANT:

Mr Raby

RESPONDENT:

Ms Fisk

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

7595

2008

DATE DELIVERED:

11 June 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide

JUDGMENT OF:

Cronin J

HEARING DATE:

20, 21 and 22 May 2013

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ian Charman & Associates

Orders

That all previous orders are discharged.
That the mother have sole parental responsibility for the children T Fisk born … 2002, S Fisk born … 2003 and B Fisk born … 2006.
That the children live with the mother.
That the father be at liberty to communicate with the children by sending cards, letters or gifts to the children posted to R Street, E or such other address as advised in paragraph 8.
That the mother ensure that the children receive the letters, cards or gifts sent by the father.
That the father be restrained by injunction from:
(a) attending at or in the vicinity of the mother’s home;
(b) attending at or in the vicinity of the children’s school during school hours when the children are in attendance.
That the mother keep the father advised of the school the children attend or any change thereto with notice being provided in writing at the address nominated by the father in paragraph 8.
That each party keep the other advised as to a contact address for them and any change thereto.
That the appointment of the Independent Children’s Lawyer be discharged.
That all proceedings be otherwise dismissed save as to any application for costs.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That 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.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 21 June 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 5 July 2013 to file and serve any response and such response be endorsed with the…

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 RABY & FISK

Details

AGLC: RABY & FISK [2013] FamCA 436
Case: [2013] FamCA 436
Decision Date: 11 June 2013

CaseChat Overview and Summary

In the matter of RABY & FISK, Cronin J made orders concerning the parental responsibility and living arrangements for three children. The dispute involved the father and mother of the children, T Fisk, S Fisk, and B Fisk.

The court was required to determine the appropriate orders regarding parental responsibility, the children's residence, and the father's communication with the children. Additionally, the court considered the need for injunctive relief to protect the mother and children, and the discharge of the Independent Children's Lawyer.

Cronin J ordered that the mother have sole parental responsibility for the children and that they live with her. The father was granted liberty to communicate with the children by sending cards, letters, or gifts, with the mother to ensure the children received them. The father was restrained by injunction from attending at or in the vicinity of the mother's home and the children's school during school hours. The mother was ordered to keep the father advised of the children's school. Both parties were required to keep each other advised of their contact addresses. The appointment of the Independent Children's Lawyer was discharged, and all proceedings were otherwise dismissed, save for any application for costs. The court also certified that it was reasonable to engage counsel and that particulars of the orders and consequences of contravention were set out in an attached Fact Sheet. Provisions were made for the filing and service of written submissions regarding costs.

Orders

Orders of the court

That all previous orders are discharged.

That the mother have sole parental responsibility for the children T Fisk born … 2002, S Fisk born … 2003 and B Fisk born … 2006.

That the children live with the mother.

That the father be at liberty to communicate with the children by sending cards, letters or gifts to the children posted to R Street, E or such other address as advised in paragraph 8.

That the mother ensure that the children receive the letters, cards or gifts sent by the father.

That the father be restrained by injunction from:

(a) attending at or in the vicinity of the mother’s home;

(b) attending at or in the vicinity of the children’s school during school hours when the children are in attendance.

That the mother keep the father advised of the school the children attend or any change thereto with notice being provided in writing at the address nominated by the father in paragraph 8.

That each party keep the other advised as to a contact address for them and any change thereto.

That the appointment of the Independent Children’s Lawyer be discharged.

10.

That all proceedings be otherwise dismissed save as to any application for costs.

IT IS CERTIFIED:

11.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

12.

That 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.

13.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 21 June 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 5 July 2013 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

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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