SS and AH (No. 2) - [2008] FamCA 821

FAMILY COURT OF AUSTRALIA

SS & AH (NO. 2)

[2008] FamCA 821

FAMILY LAW – CHILDREN – With whom a child lives and spends time - Orders

APPLICANT:

RESPONDENT:

FILE NUMBER:

BRF

1070

1999

DATE DELIVERED:

30 September 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

29 - 30 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant Father appeared in person

COUNSEL FOR THE RESPONDENT:

Respondent Mother appeared in person

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

That the Father have sole responsibility for all long term and short term decisions concerning the care, welfare and development of the children, J born in October 1993 and K born in September 1997.
The Father is not to change the schooling of the children without the written consent of the Mother or further order of the Court.
Orders 3, 4, 5, 6, 7 9 and 14 of the Orders of the Honourable Justice Buckley dated 10 June 2005 are suspended.
The children are at liberty to communicate with the Mother by telephone, mail or email at any time.
The Mother is not to telephone or attempt to telephone either child.
The Mother is not to have physical contact or attempt to have physical contact with either child.
Notwithstanding any other provision in this Order the Mother may spend time with the children at all such times as the parties may mutually agree in writing.
The Mother is to be at liberty to respond by email to any email communication from the children but that such response is to be limited to one response per communication from each child.
The Mother may send cards to the children on special occasions such as Christmas, Easter or the children’s birthdays.

IT IS ORDERED:

The proceedings be adjourned for case management review and trial directions to 9.30 am on 8 December 2008 at the Brisbane Registry of the Family Court.
The proceedings be set down for trial for three (3) days commencing 10.00 am on 6 April 2009 at the Brisbane Registry of the Family Court.
Pursuant to s 62B and s 65DA(2), 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 under the pseudonym SS & AH is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1070 of 1999

Applicant Mother

And

Respondent Father

REASONS FOR JUDGMENT

On yesterday's date I made directions relating to the future conduct of this matter. On today's date I have to consider what changes, if any, should be to orders made on 10 June…

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 SS and AH (No. 2)

Details

AGLC: SS and AH (No. 2) [2008] FamCA 821
Case: [2008] FamCA 821
Decision Date: 30 September 2008

CaseChat Overview and Summary

In *SS and AH (No. 2)*, Barry J of the Family Court of Australia made orders concerning the care, welfare, and development of two children, J and K. The proceedings involved a dispute between the parents regarding these matters, culminating in the court's determination of parenting arrangements.

The court was required to determine the primary decision-making responsibility for the children, the extent of the mother's contact with the children, and the conditions under which any contact might occur. Additionally, the court needed to address the schooling of the children and the communication methods available to the mother.

Barry J ordered that the Father have sole responsibility for all long-term and short-term decisions concerning the children's care, welfare, and development. The Mother was prohibited from telephoning or attempting to telephone, or having or attempting to have physical contact with, either child. However, the Mother was permitted to communicate with the children by telephone, mail, or email at any time, and to respond to emails from the children with a single response per communication. The Mother could also send cards on special occasions. The Father was not to change the children's schooling without the Mother's written consent or further court order. Certain previous orders were suspended. The proceedings were adjourned for case management and set down for trial. The court also issued a notice regarding the obligations and consequences of contravening the orders.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER:

That the Father have sole responsibility for all long term and short term decisions concerning the care, welfare and development of the children, J born in October 1993 and K born in September 1997.

The Father is not to change the schooling of the children without the written consent of the Mother or further order of the Court.

Orders 3, 4, 5, 6, 7 9 and 14 of the Orders of the Honourable Justice Buckley dated 10 June 2005 are suspended.

The children are at liberty to communicate with the Mother by telephone, mail or email at any time.

The Mother is not to telephone or attempt to telephone either child.

The Mother is not to have physical contact or attempt to have physical contact with either child.

Notwithstanding any other provision in this Order the Mother may spend time with the children at all such times as the parties may mutually agree in writing.

The Mother is to be at liberty to respond by email to any email communication from the children but that such response is to be limited to one response per communication from each child.

The Mother may send cards to the children on special occasions such as Christmas, Easter or the children’s birthdays.

IT IS ORDERED:

10.

The proceedings be adjourned for case management review and trial directions to 9.30 am on 8 December 2008 at the Brisbane Registry of the Family Court.

11.

The proceedings be set down for trial for three (3) days commencing 10.00 am on 6 April 2009 at the Brisbane Registry of the Family Court.

12.

Pursuant to s 62B and s 65DA(2), 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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