STACE & BRENT - [2014] FamCA 75

FAMILY COURT OF AUSTRALIA

STACE & BRENT

[2014] FamCA 75

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child spends time – best interests – where matter has proceeded without mother being involved – orders made for children to live with father who has sole parental responsibility – no orders made for children to spend time with mother

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA

Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Moose & Moose (2008) FLC 95-375
Sexton & Sexton [2012] FamCAFC 218
Slater & Light (2013) Fam LR 573

APPLICANT:

Ms Stace

RESPONDENT:

Mr Brent

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

469

2008

DATE DELIVERED:

18 February 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

6 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr Dillon

SOLICITOR FOR THE RESPONDENT:

Andrew Hill & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That all previous parenting orders be discharged.
That the father shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the children S born … July 2004 and N born … March 2007 (“the children”).
That the said children live with their father.
The father is restrained from consuming alcohol to excess and or being under the influence of any illicit substance, and from allowing any other person so to do, while the children are in his care and 24 hours prior to.
The father is restrained from physically disciplining the children and or from allowing any other person so to do.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s 62B and s 62DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations of 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 Stace & Brent 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: ADC469/2008
Ms Stace

Applicant

AND

Mr Brent

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to parenting issues in respect of the children S born in July 2004 and N born in March 2007 (‘the children’). The eldest child was diagnosed at age three as having Autism and Global Developmental Delay.
By way…

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 STACE & BRENT

Details

AGLC: STACE & BRENT [2014] FamCA 75
Case: [2014] FamCA 75
Decision Date: 18 February 2014

CaseChat Overview and Summary

In the matter of STACE & BRENT, Berman J of the Family Court of Australia considered parenting orders concerning two children, S and N. The dispute involved the arrangements for the children's care and the allocation of parental responsibility.

The court was required to determine the most appropriate parenting orders for the children, considering their welfare and development. This included deciding on issues of parental responsibility, living arrangements, and specific conditions to be imposed on the parents to ensure the children's safety and well-being.

Berman J ordered the discharge of all previous parenting orders. The father was granted sole parental responsibility for major long-term decisions concerning the children's care, welfare, and development, and the children were ordered to live with him. The father was also restrained from consuming alcohol to excess or being under the influence of illicit substances, and from allowing others to do so, while the children were in his care and for 24 hours prior. Furthermore, the father was restrained from physically disciplining the children or allowing others to do so. The order for an Independent Children's Lawyer was discharged. The court also noted that particulars of obligations, consequences of contravention, and assistance for compliance were set out in an annexed document, pursuant to sections 62B and 62DA(2) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

That all previous parenting orders be discharged.

That the father shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the children S born … July 2004 and N born … March 2007 (“the children”).

That the said children live with their father.

The father is restrained from consuming alcohol to excess and or being under the influence of any illicit substance, and from allowing any other person so to do, while the children are in his care and 24 hours prior to.

The father is restrained from physically disciplining the children and or from allowing any other person so to do.

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

Pursuant to s 62B and s 62DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations of 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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