Sotto and Hensley - [2019] FCCA 3358

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOTTO & HENSLEY

[2019] FCCA 3358

Catchwords:
FAMILY LAW – Ex tempore rulings – court applying s.45A Family Law Act to ensure summary disposition – matters in dispute dealt with by consent, on submissions only.

Legislation:

Family Law Act 1975 (Cth), ss.45A(7), 45A

Cases cited:

Hanes & Walsingham [2011] FMCAfam 561

SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581
SZPGS v Minister for Immigration and Citizenship [2008] FMCA 360

Applicant:

MR SOTTO

Respondent:

MS HENSLEY

File Number:

MLC 4210 of 2007

Judgment of:

Judge Burchardt

Hearing date:

23 October 2019

Date of Last Submission:

23 October 2019

Delivered at:

Dandenong

Delivered on:

23 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Dunlop

Solicitors for the Applicant:

Dandenong Family Lawyers

The Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr Lynch

Solicitors for the Applicant:

Peter Lynch Lawyer

ORDERS

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, final orders are made in terms of the Independent Children’s Lawyer’s minute as amended in accordance with the attached Minutes of proposed orders placed on the Court file.
The order appointing the Independent Children’s Lawyer dated
7 November 2018 be discharged.

THE COURT DECLARES THAT:

It is in the best interests of the child X Sotto born … 2006 to be known as X Hensley.

THE COURT ORDERS THAT:

The child previously known as X Sotto born … 2006 now be known as X Hensley.
The Respondent apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with Order 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
The Mother is authorised and permitted to apply for and receive an Australian passport for the child X Hensley, formally known as X Sotto born … 2006 without first obtaining the written consent of the other parent.
The child X Hensley, formally known as X Sotto born … 2006 be permitted to depart the Commonwealth of Australia.
The Airport Watch List order be discharged and the Australian Federal Police be requested to remove the name of the child X Hensley, formally known as X Sotto born … 2006 from the Airport Watch List currently in force at all points of international arrival and departure in the Commonwealth of Australia.

THE COURT DIRECTS THAT:

The solicitors for the Independent Children’s Lawyer file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to … within seven (7) days.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

ENGROSSED MINUTES

IT IS ORDERED:

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 Sotto and Hensley

Details

AGLC: Sotto and Hensley [2019] FCCA 3358
Case: [2019] FCCA 3358
Decision Date: 23 October 2019

CaseChat Overview and Summary

In the matter of Sotto and Hensley, Judge Burchardt of the Federal Circuit Court of Australia made final orders concerning a child, X Sotto, born in 2006. The dispute involved parental responsibility, living arrangements, and the child's name. The court considered the best interests of the child in making its determinations.

The court was required to determine the best interests of the child, including issues of parental responsibility, the child's residence, and the extent of the child's contact with the father. Additionally, the court addressed the significant issue of changing the child's surname and the implications for international travel and passport applications. The court also considered the discharge of previous orders and the appointment of an Independent Children's Lawyer.

Applying the principles of the *Family Law Act 1975*, the court declared that it was in the best interests of the child to be known as X Hensley. The court ordered that the child's surname be changed to Hensley, with the mother responsible for registering this change. The mother was granted sole parental responsibility and the child was ordered to live with her. The father's contact with the child was to be at the child's instigation. The court also authorised the mother to apply for an Australian passport for the child without the father's consent and permitted the child to depart Australia, discharging any Airport Watch List orders. Restraints were placed on both parents, including a prohibition against denigrating the other parent to the child and the father being restrained from attending the child's school. The appointment of the Independent Children's Lawyer was discharged.

Orders

Orders of the court

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, final orders are made in terms of the Independent Children’s Lawyer’s minute as amended in accordance with the attached Minutes of proposed orders placed on the Court file.

The order appointing the Independent Children’s Lawyer dated

7 November 2018 be discharged.

THE COURT DECLARES THAT:

It is in the best interests of the child X Sotto born … 2006 to be known as X Hensley.

THE COURT ORDERS THAT:

The child previously known as X Sotto born … 2006 now be known as X Hensley.

The Respondent apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with Order 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

The Mother is authorised and permitted to apply for and receive an Australian passport for the child X Hensley, formally known as X Sotto born … 2006 without first obtaining the written consent of the other parent.

The child X Hensley, formally known as X Sotto born … 2006 be permitted to depart the Commonwealth of Australia.

The Airport Watch List order be discharged and the Australian Federal Police be requested to remove the name of the child X Hensley, formally known as X Sotto born … 2006 from the Airport Watch List currently in force at all points of international arrival and departure in the Commonwealth of Australia.

THE COURT DIRECTS THAT:

The solicitors for the Independent Children’s Lawyer file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to … within seven (7) days.

THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

ENGROSSED MINUTES

IT IS ORDERED:

THAT the mother have sole parental responsibility for the child X born … 2006 (“the child”).

THAT the mother will notify the father in writing of any parental responsibility order she makes within a reasonable time.

THAT the child X live with the mother.

THAT in the alternative to Orders 2 and 3, the child spend time and communicate with the father only if she expresses a wish to do so and she instigates the communication and time with the father.

THAT the mother will notify the father of any major illness or hospitalization affecting the child within a reasonable time and that the father be at liberty to contact the treating professional.

THAT the father be at liberty to send cards, gifts and presents at significant occasions to the child at the mother's address and the mother will provide these items to the child.

THAT the mother and father be restrained from:-

(a) Issuing further proceedings without leave of the court.

(b) denigrating the other parent to or in the presence of the child.

THAT Orders 14 and 15 of the Orders of 2010 remain in full force and effect.

THAT any Watch List Order regarding the child be discharged.

(9A) THAT the mother is to apply for a Passport Order without the consent of the father.

10.

THAT all previous Orders be otherwise discharged.

11.

THAT the appointment of the Independent Children's Lawyer be discharged within (7) days of him meeting X and explaining these Orders to her.

12.

THAT the mother and father keep each other advised of their current residential address and email.

13.

THAT the child's surname be changed to HENSLEY.

14.

THAT the mother will keep the father advised of the child's school by progress reports.

15.

THAT the father be restrained from attending the child's school.

16.

THAT pursuant to Section 65DA(2) and S62(B) of the Family Law Act 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 the 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.

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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