SMITHFIELD & SMITHFIELD - [2014] FamCA 666

FAMILY COURT OF AUSTRALIA

SMITHFIELD & SMITHFIELD

[2014] FamCA 666

FAMILY LAW – CHILDREN - Final Orders - Undefended Hearing - where father filed Notice of Discontinuance – where mother has history of physical and mental illness – mother alleges father perpetrator of family violence – improvement in mothers health following separation - children have not spent time with the father for approximately three years – orders made for children to live with mother who shall have sole parental responsibility.

Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 65D

Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Maldera & Orbel [2014] FamCAFC 135
Sexton & Sexton [2012] FamCAFC 218
Sinnott & Firth (No 2) [2013] FamCAFC 159

APPLICANT:

Mr Smithfield

RESPONDENT:

Ms Smithfield

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

4211

2011

DATE DELIVERED:

19 August 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No Appearance

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr Swan

SOLICITOR FOR THE RESPONDENT:

Swan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

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 … 2011 (“the children”).
That the said children do live with the mother.
That the directions hearing listed for 7 November 2014 be vacated.
That the 5 day trial commencing 8 December 2014 be vacated.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
That the proceedings be removed from the Acting 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 entitles “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 Smithfield & Smithfield 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: ADC 4211 of 2011

Mr Smithfield

Applicant

And

Ms Smithfield

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to parenting arrangements in respect of the children B born in 2008 and C born in 2011 (“the children”).
The mother alleges family violence permeated their relationship and that both she and the children were targets of the father’s physical violence. The father alleges the mother’s illnesses rendered her incapable of adequately…

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 SMITHFIELD & SMITHFIELD

Details

AGLC: SMITHFIELD & SMITHFIELD [2014] FamCA 666
Case: [2014] FamCA 666
Decision Date: 19 August 2014

CaseChat Overview and Summary

In the matter of SMITHFIELD & SMITHFIELD, Berman J of the Family Court of Australia considered parenting orders concerning two children, B and C. The dispute revolved around the future care arrangements and parental responsibilities for these children.

The court was required to determine the appropriate parenting orders, specifically addressing issues of parental responsibility for major long-term decisions concerning the children's care, welfare, and development, as well as their living arrangements. The court also considered the necessity of continuing with previously scheduled hearings and the role of an Independent Children's Lawyer.

Applying the principles of the *Family Law Act 1975* (Cth), particularly sections 62B and 65DA(2), Berman J made orders discharging all previous parenting orders. The court ordered that the mother shall have sole parental responsibility for decisions concerning the children's major long-term care, welfare, and development, and that the children shall live with the mother. Consequently, a directions hearing and a trial were vacated, and the order for the appointment of an Independent Children’s Lawyer was discharged. The proceedings were also removed from the Acting Pending List of Cases. The court further directed that a document detailing the obligations, consequences of contravention, and sources of assistance for compliance with these orders be annexed to the orders.

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 … 2011 (“the children”).

That the said children do live with the mother.

That the directions hearing listed for 7 November 2014 be vacated.

That the 5 day trial commencing 8 December 2014 be vacated.

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

That the proceedings be removed from the Acting 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 entitles “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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