SCVG & KLD - [2015] FamCA 110

FAMILY COURT OF AUSTRALIA

SCVG & KLD

[2015] FamCA 110

FAMILY LAW – Parenting – 10 years of litigation – Father persistent in pursuing shared care – Children now rejecting time – Father’s view is that the Court is obliged by the legislation to work towards shared care – Overriding consideration is welfare and in this case, protection of children – Limited telephone contact orders made.

Evidence Act 1995 (Cth).
Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Goode and Goode [2006] FamCA 1346; (2006) FLC 93,286
Runcorn & Raine (unreported [2008] FamCA 837)
U v U (2002) 211 CLR 238

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

27 February 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Canberra

JUDGMENT OF:

Cronin J

HEARING DATE:

2, 3, 4, 5 & 6 February 2015

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Tonkin

SOLICITOR FOR THE RESPONDENT:

Macphillamy's Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stagg, Legal Aid ACT

Orders

That all extant parenting orders are forthwith discharged.
That the mother has sole parental responsibility for the children B and C.
That the children live with the mother.
That the Registrar of the Court (Sydney Registry) forthwith return to the mother all passports relating to the children.
That the father spend no face-to-face time with B and C.
That commencing on Sunday 8 March 2015, the father be permitted to communicate with B and C as follows:
(a)by telephone on each Sunday evening at 6 pm with the mother facilitating such call and she being responsible for ensuring that the children speak to the father at the appointed time; and
(b)by cards, letters and presents but not text messages or emails, with all such communications being sent by the father to the Independent Children’s Lawyer for a period of 12 months from this date and thereafter, the father may communicate in that same way direct to the children.
Pursuant to s 118 of the Family Law Act 1975, the father is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.
The Independent Children’s Lawyer is discharged from the proceedings as and from 1 March 2016.
Save as to issues of costs, the applications and responses thereto are otherwise dismissed.
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 16 March 2015 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 31 March 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other…

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 SCVG & KLD

Details

AGLC: SCVG & KLD [2015] FamCA 110
Case: [2015] FamCA 110
Decision Date: 27 February 2015

CaseChat Overview and Summary

In the matter of SCVG & KLD, Cronin J of the Family Court of Australia made orders concerning the parental responsibility and living arrangements for two children, B and C. The proceedings involved the mother and the father of the children, with an Independent Children’s Lawyer also appointed. The dispute concerned the future care and welfare of B and C.

The court was required to determine the appropriate parenting orders, including who should have parental responsibility, where the children should live, and the nature and extent of the father's contact with them. Additionally, the court considered whether to restrain the father from making future applications concerning the children and the reasonableness of engaging counsel.

Cronin J ordered that all existing parenting orders be discharged and that the mother have sole parental responsibility for B and C, with the children to live with her. The father was prohibited from having any face-to-face time with the children. Communication was permitted via telephone on Sundays at 6 pm, facilitated by the mother, and through cards, letters, and presents sent to the Independent Children’s Lawyer for 12 months, after which direct communication with the children was allowed. Pursuant to section 118 of the *Family Law Act 1975*, the father was restrained from bringing further applications concerning the children without leave. The Independent Children’s Lawyer was discharged from 1 March 2016. The court also certified that it was reasonable to engage counsel.

Orders

Orders of the court

That all extant parenting orders are forthwith discharged.

That the mother has sole parental responsibility for the children B and C.

That the children live with the mother.

That the Registrar of the Court (Sydney Registry) forthwith return to the mother all passports relating to the children.

That the father spend no face-to-face time with B and C.

That commencing on Sunday 8 March 2015, the father be permitted to communicate with B and C as follows:

(a) by telephone on each Sunday evening at 6 pm with the mother facilitating such call and she being responsible for ensuring that the children speak to the father at the appointed time; and

(b) by cards, letters and presents but not text messages or emails, with all such communications being sent by the father to the Independent Children’s Lawyer for a period of 12 months from this date and thereafter, the father may communicate in that same way direct to the children.

Pursuant to s 118 of the Family Law Act 1975, the father is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.

The Independent Children’s Lawyer is discharged from the proceedings as and from 1 March 2016.

Save as to issues of costs, the applications and responses thereto are otherwise dismissed.

10.

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 16 March 2015 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 31 March 2015 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.

11.

That all exhibits be returned to the parties after any appeal period has expired.

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.

IT IS CERTIFIED:

13.

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

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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