Sonos and Dunne - [2013] FamCA 882

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 Sonos and Dunne

Details

AGLC: Sonos and Dunne [2013] FamCA 882
Case: [2013] FamCA 882
Decision Date: 13 November 2013

CaseChat Overview and Summary

In the matter of *Sonos and Dunne*, heard by Berman J, the dispute concerned parenting orders for two children, B and C. The proceedings involved applications by both the mother and the father regarding the children's living arrangements and parental responsibility.

The court was required to determine the most appropriate parenting orders for the children, considering their best interests. This included deciding on sole or shared parental responsibility for major long-term decisions, where the children would live, and whether they should spend any time with the father. The court also considered the discharge of previous parenting orders and the appointment of an Independent Children's Lawyer.

Berman J reasoned that the children should live with the mother and that she should have sole parental responsibility for decisions concerning their major long-term care, welfare, and development. The court further ordered that the children spend no time with the father. These orders were made pursuant to the *Family Law Act 1975* (Cth), with specific provisions outlined regarding obligations, consequences of contravention, and assistance for compliance. All previous parenting orders were discharged, and the Independent Children's Lawyer's appointment was also discharged. The proceedings were removed from the active pending list.

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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