FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Starr & Dell [2023] FedCFamC2F 1517
File number(s): CAC 1770 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father continues to seek to spend time with his now 10 year old daughter who is significantly resistant to spending time with him – Father has significant criminal history – a number of factual contentions to support Application not established by the Father – Father contends that the Mother effectively subverts his attempts to improve the relationship with his daughter – best interest considerations of the child point clearly to recognition time only between Father and daughter. Legislation: Family Law Act 1975 (Cth) Cases cited: Carriel v Lendrum (2015) 53 Fam LR 157
Defrey and Radnor [2021] FamCAFC 67
Mahoney & Dieter [2020] FamCAFC 88
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
O’Brien & O’Brien [2017] FamCAFC 219
Phillips v Hansford (No.2) (2020) 60 Fam LR 160
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725
Shan & Prasad (2020) 61 Fam LR 440
SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stern v Colli (2022) 65 Fam LR 548
Swenson & Brantley (No.2) [2020] FamCAFC 205
Walter & Walter [2016] FamCAFC 56
Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 13 October 2023 Place: Canberra Counsel for the Applicant Ms Isaacson Solicitor for the Applicant Ms Foster Counsel for the Respondent Mr Stagg Solicitor for the Respondent Mr Lee Independent Children’s Lawyer Ms Cruise ORDERS
CAC 1770 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR STARR
Applicant
AND: MS STARR
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
29 NOVEMBER 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Father’s Application filed 12th August 2021 be dismissed.
2.Final Orders of 6th December 2019 be discharged.
3.The Mother shall have sole parental responsibility for the child X (born in 2013) (“the child”).
IT IS NOTED that the intention of the Order for sole parental responsibility made at Order 1 above in favour of the Mother is to vest sole parental responsibility for the child in the Mother for all purposes, including the purposes of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005.
4.The child shall live with the Mother.
5.The Mother shall be at liberty to travel with the child within Australia or overseas in the future for holiday or for any future periods that her Husband receives a defence force posting.
6.Pursuant to Order 5 herein, for the purpose of any future posting the Mother shall:
(a)Notify the Father within 14 days of confirmation of such posting; and
(b)Advise…
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- Starr & Dell [2023] FedCFamC2F 1517
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- [2023] FedCFamC2F 1517
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CaseChat Overview and Summary
The legal issues the court had to address included whether the father's application should be granted based on the child's best interests, given her significant resistance and the father's criminal history. Additionally, the court had to consider whether the mother's actions had effectively subverted the father's attempts to improve the relationship with his daughter. The court was also required to determine if the father had established the factual contentions necessary to support his application.
The court found that the child's significant resistance to spending time with her father and the father's criminal history weighed heavily against the application. The court did not find the factual contentions presented by the father to be adequately established. Furthermore, the court concluded that the mother had not acted in a manner that effectively subverted the father's attempts to improve the relationship with his daughter. Despite this, the court recognised that the best interests of the child pointed clearly towards limited recognition time only between the father and daughter. Therefore, the court dismissed the father's application, discharged the final orders from 6 December 2019, and confirmed that the mother would have sole parental responsibility for the child.
Orders
Orders of the court
CAC 1770 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR STARR
Applicant
AND:
MS STARR
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
29 NOVEMBER 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1. The Father’s Application filed 12th August 2021 be dismissed.
2. Final Orders of 6th December 2019 be discharged.
3. The Mother shall have sole parental responsibility for the child X (born in 2013) (“the child”).
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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