SPENCER & GREENTREE - [2018] FamCA 290

FAMILY COURT OF AUSTRALIA

SPENCER & GREENTREE

[2018] FamCA 290

FAMILY LAW – CHILDREN – Best Interests – Where the father has disengaged from the proceedings – Where the mother seeks orders that the children spend no time with the father – Where there are allegations the father perpetrated family violence against the mother in the presence of the children – Where there are concerns as to the father’s mental health – Where the father has not had a relationship with the children for over four years – Where the older children are exhibiting signs of trauma – Where the father has perpetrated family violence against the mother to which the children were exposed – Where the mother has re-partnered – Where the mother seeks that she be allowed to change the children’s surname to her partner’s surname – Where it is not appropriate that the mother be allowed to change the children’s surname to that of her partner – Orders otherwise made as sought by the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the father has disengaged from the proceedings – Where it is appropriate for the matter to proceed on an undefended basis.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
In the Marriage of George and Radford (1976) FLC 90-060
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Reynolds and Sherman [2016] FamCAFC 240

APPLICANT:

Mr Spencer

RESPONDENT:

Ms Greentree

INDEPENDENT CHILDREN’S LAWYER:

Mr Walkden

FILE NUMBER:

WOC

261

2016

DATE DELIVERED:

4 May 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 February 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Mr McGrath of Marsdens Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Walkden of Legal Aid NSW Suburb F Family Law

Orders

The Respondent Mother shall have sole parental responsibility for the children, B born … 2002, C born … 2005 and D born … 2008 (“the children”), for all intents and purposes including under the Family Law Act 1975 (Cth) and the Australian Passports Act 2005 (Cth).
The children live with the Respondent Mother.
The children spend no time with the Applicant Father.
The Applicant Father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the children.
The Applicant father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the Respondent mother directly or via a third party including but not limited to her husband Mr Greentree or members of her family.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under…

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 SPENCER & GREENTREE

Details

AGLC: SPENCER & GREENTREE [2018] FamCA 290
Case: [2018] FamCA 290
Decision Date: 4 May 2018

CaseChat Overview and Summary

This matter concerned an application by the father and mother regarding their three children. The mother sought orders that the children spend no time with the father, alleging family violence perpetrated by the father against her in the presence of the children, and expressing concerns about the father's mental health. The father had disengaged from the proceedings and had not had a relationship with the children for over four years. The mother also sought to change the children's surname to that of her new partner. The court was required to determine the parenting arrangements for the children, specifically whether they should spend any time with the father, and whether the surname change should be permitted.

The court was required to consider the paramountcy of the children's best interests in determining the parenting orders. This involved assessing the impact of the father's alleged family violence and his disengagement from the children's lives, as well as the children's exposure to trauma. The court also had to consider the appropriateness of allowing the mother to change the children's surname. Given the father's disengagement, the court determined it was appropriate to proceed with the final hearing on an undefended basis.

Applying the principles of the *Family Law Act 1975* (Cth), the court found that it was not in the children's best interests to spend any time with the father, particularly in light of the allegations of family violence and the prolonged period of disengagement. The court also determined that it was not appropriate to permit the change of the children's surname. Consequently, the court made orders granting the mother sole parental responsibility for the children, that the children live with the mother, and that they spend no time with the father. The father was also restrained by injunction from communicating with the children and the mother.

Orders

Orders of the court

The Respondent Mother shall have sole parental responsibility for the children, B born … 2002, C born … 2005 and D born … 2008 (“the children”), for all intents and purposes including under the Family Law Act 1975 (Cth) and the Australian Passports Act 2005 (Cth).

The children live with the Respondent Mother.

The children spend no time with the Applicant Father.

The Applicant Father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the children.

The Applicant father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the Respondent mother directly or via a third party including but not limited to her husband Mr Greentree or members of her family.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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