Stiles & Anor and Spence & Anor - [2014] FamCA 384

FAMILY COURT OF AUSTRALIA

STILES AND ANOR & SPENCE AND ANOR

[2014] FamCA 384

FAMILY LAW – CHILDREN – Final Orders - undefended hearing – where neither the applicants nor the second respondent participated in final hearing – respondent mother sought orders for sole parental responsibility – hostile relationship between all parties – previous shared care arrangement had failed – best interests of the child – child to live with mother who shall have sole parental responsibility.

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

Aldridge & Keaton (2009) 42 Fam LR 369
Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Sexton & Sexton [2012] FamCAFC 218
Sinnott & Firth (No. 2) [2013] FamCAFC 159
Valentine & Lacerra and Anor (2013) FLC 93-539; 49 Fam LR 255

APPLICANTS:

Mr T Stiles and Ms J Stiles

1st RESPONDENT:

Ms Spence

2nd RESPONDENT:

Mr S Stiles

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

3822

2011

DATE DELIVERED:

11 June 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

19 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Childs (leave granted to withdraw on 1^st day of trial 19 May 2014)
No appearance of Litigant

SOLICITOR FOR THE APPLICANT:

The Family Law Project (leave granted to withdraw on 1^st day of trial 19 May 2014)

COUNSEL FOR THE 1ST RESPONDENT:

Ms Lee

SOLICITOR FOR THE 1ST RESPONDENT:

Denise M Rieniets & Associates

COUNSEL FOR THE 2ND RESPONDENT:

N/A

SOLICITOR FOR THE 2ND RESPONDENT:

No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That all previous orders be discharged.
That the mother shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the child B born … 2007.
That the said child live with the mother.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 by this Court under the pseudonym Stiles and Anor & Spence and Anor 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: ADC 3822 of 2011

Mr T Stiles and Ms J Stiles

Applicant

And

Ms Spence

First Respondent

And

Ms S Stiles
Second Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings relate to parenting issues in respect of…

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 Stiles & Anor and Spence & Anor

Details

AGLC: Stiles & Anor and Spence & Anor [2014] FamCA 384
Case: [2014] FamCA 384
Decision Date: 11 June 2014

CaseChat Overview and Summary

In the matter of *Stiles & Anor and Spence & Anor*, Berman J of the Federal Circuit and Family Court of Australia considered a dispute concerning the parenting arrangements for a child, B, born in 2007. The proceedings involved applications by the parties regarding the child's living arrangements and parental responsibility.

The central legal issues before the court were the determination of who should have sole parental responsibility for decisions concerning the child's major long-term care, welfare, and development, and with whom the child should live. The court was also required to consider the appointment of an Independent Children's Lawyer.

Berman J ordered that the mother have sole parental responsibility for decisions regarding the child's major long-term care, welfare, and development, and that the child live with the mother. Consequently, the order appointing an Independent Children's Lawyer was discharged. The court also directed that particulars of the obligations created by these orders, the consequences of contravention, and information on assistance for compliance be provided in an annexed document, pursuant to sections 62B and 65DA(2) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

That all previous orders be discharged.

That the mother shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the child B born … 2007.

That the said child live with the mother.

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

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.