STOREY & MARTEL - [2016] FamCA 833

FAMILY COURT OF AUSTRALIA

STOREY & MARTEL

[2016] FamCA 833

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – where father’s oral application for an adjournment is dismissed – where father seeks an adjournment until his criminal proceedings conclude – where the effect of determining the mothers application rather than adjourning it does not deprive the father any real opportunity to litigate his rights – where it is in the interests of justice to determine the application rather than adjourn

FAMILY LAW – PARENTING – Interim Proceedings – where mother has sole parental responsibility of the child – where father seeks equal shared parental responsibility – where father seeks interim orders requiring the mother to relocate to an area close to him – where mother alleges father has sexually abused the child – where father was charged with a number of sexual assaults of the mother and one other person – where father is remanded in custody – where father has a criminal history – where mother currently exercises de facto sole parental responsibility – where the presumption of equal shared parental responsibility does not apply

FAMILY LAW – PRACTICE AND PROCEDURE – where service of documents upon the C Correctional Centre is deemed good service upon the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 79ZN

Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
Banks & Banks [2015] FamCAFC 36
Bloch v Bloch (1981) 180 CLR 390
Elgin & Elgin [2015] FamCAFC 155
Forster & Forster [2014] FamCAFC 88
Goode & Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC 100
Sali v SPC Ltd (1993) 67 ALJR 841

APPLICANT:

Ms Martel

RESPONDENT:

Mr Storey

INDEPENDENT CHILDREN’S LAWYER:

Ms Wallace

FILE NUMBER:

BRC

5091

2015

DATE DELIVERED:

30 September 2016

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

27 September 2016

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Gun Lawyers - Townsville

THE RESPONDENT:

In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

McDonald & Leong

Orders

The father’s oral application for a six month adjournment of the hearing of the mother’s Application in a Care filed 7 July 2016 is dismissed.
The mother Ms Martel, have sole parental responsibility of the child B born … 2015.
The service of documents in these proceedings upon the C Correctional Centre is deemed good service upon the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Storey & Martel 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 CAIRNS

FILE NUMBER: BRC5091/2015

Ms Martel

Applicant

And

Mr Storey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings relate to the parties’ only child, B (born in 2015, and hence presently 18 months of age) (“the child”). Although they had been in a relationship since March 2012, the parties separated on 20 February 2015, just under a month after the child was…

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 STOREY & MARTEL

Details

AGLC: STOREY & MARTEL [2016] FamCA 833
Case: [2016] FamCA 833
Decision Date: 30 September 2016

CaseChat Overview and Summary

In the matter of *Storey & Martel*, heard before Tree J, the dispute concerned interim parenting orders. The mother, Ms Martel, sought sole parental responsibility for the child, B, born in 2015. The father, Mr Storey, who was remanded in custody at the C Correctional Centre, sought equal shared parental responsibility and interim orders requiring the mother to relocate to an area near him. The mother alleged that the father had sexually abused the child, and the father faced charges for sexual assaults against the mother and another person, with a criminal history.

The court was required to determine whether to grant the father's oral application for an adjournment of the proceedings until his criminal proceedings concluded. Additionally, the court had to consider the parenting arrangements for the child, specifically whether to grant the mother sole parental responsibility or to make orders for equal shared parental responsibility, and whether to order the mother to relocate. The court also needed to address the issue of service of documents upon the father.

Tree J dismissed the father's application for a six-month adjournment, finding that determining the mother's application would not deprive the father of a real opportunity to litigate his rights and that it was in the interests of justice to proceed. The court noted that the presumption of equal shared parental responsibility did not apply in these circumstances, particularly given the father's current incarceration and the serious allegations made against him. The court deemed service of documents upon the C Correctional Centre to be good service upon the father.

Consequently, the court ordered that the mother, Ms Martel, have sole parental responsibility for the child B. The father's application for an adjournment was dismissed, and service upon the correctional centre was deemed valid.

Orders

Orders of the court

The father’s oral application for a six month adjournment of the hearing of the mother’s Application in a Care filed 7 July 2016 is dismissed.

The mother Ms Martel, have sole parental responsibility of the child B born … 2015.

The service of documents in these proceedings upon the C Correctional Centre is deemed good service upon the father.

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.