REX & GOSKIN - [2013] FamCA 982

FAMILY COURT OF AUSTRALIA

SONOS & DUNNE

[2013] FamCA 882

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child should spend time - where the matter has proceeded without the father being involved – best interests – orders made for the children to live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) s 60B; 60CA; 60CC; 61DA; 65DAA; 91B

Allesch v Maunz (2000) 2003 CLR 172
Haydon & Bennett [2012] FamCAFC 89
Sexton & Sexton [2012] FamCAFC 218

APPLICANT:

Mr Sonos

RESPONDENT:

Ms Dunne

INDEPENDENT CHILDREN’S LAWYER:

C M Bint Family Lawyers

FILE NUMBER:

BRC

505

2012

DATE DELIVERED:

13 November 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Berman J

HEARING DATE:

16 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Ms Farr

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sara

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

C M Bint Family Lawyers

Orders

That all previous parenting orders be discharged.
That the mother shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the children B born … 2008 and C born … 2010 (“the children”).
That the said children live with the mother.
That the said children spend no time with the father.
That the order for the appointment of the Independent Children's Lawyer be discharged.
That the proceedings be removed from the active pending list of cases.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sonos & Dunne 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 ADELAIDE

FILE NUMBER: BRC 505 of 2012

Mr Sonos

Applicant

And

Ms Dunne

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings relate to parenting issues in respect of the children B born in 2008 and C born in 2010 (“the children”).
By initiating application filed 20 January 2012 the father sought extensive orders in respect of parenting but in particular that the parties would have equal shared parental responsibility in respect of the children but that they would primarily live with the father and spend time with the mother only as agreed.
The mother by way of amended response filed 17 December 2012 seeks orders that she have sole parental responsibility for the children and that they live…

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 REX & GOSKIN

Details

AGLC: REX & GOSKIN [2013] FamCA 882
Case: [2013] FamCA 982
Decision Date: 13 November 2013

CaseChat Overview and Summary

In the matter of *REX & GOSKIN*, Berman J of the Federal Circuit and Family Court of Australia made orders concerning the parenting of two children, B and C. The dispute centred on the arrangements for the children's care and upbringing, culminating in the court's determination of sole parental responsibility and living arrangements.

The primary legal issue before the court was to determine the most appropriate parenting orders for the children, considering their welfare and development. This involved assessing the existing parenting arrangements and deciding whether to discharge them in favour of new orders. The court was also required to consider the appointment of an Independent Children's Lawyer and the future management of the case.

Berman J reasoned that the welfare and best interests of the children necessitated a significant shift in their living arrangements and parental responsibility. The court discharged all previous parenting orders and made orders for the mother to have sole parental responsibility for major long-term decisions concerning the children's care, welfare, and development. Crucially, the children were ordered to live with the mother and spend no time with the father. The court also discharged the order for the appointment of an Independent Children's Lawyer.

The court's final orders discharged all previous parenting orders and vested sole parental responsibility for the children, B and C, with the mother. The children were ordered to live with the mother and have no contact with the father. The order appointing an Independent Children's Lawyer was discharged, and the proceedings were removed from the active pending list. The court also annexed a document detailing the obligations, consequences of contravention, and support services related to the new parenting orders, pursuant to sections 62B and 65DA(2) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

That all previous parenting orders be discharged.

That the mother shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the children B born … 2008 and C born … 2010 (“the children”).

That the said children live with the mother.

That the said children spend no time with the father.

That the order for the appointment of the Independent Children's Lawyer be discharged.

That the proceedings be removed from the active pending list of cases.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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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