STUBBS & STUBBS - [2014] FamCA 144

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS

[2014] FamCA 144

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live - with whom a child should spend time – lengthy proceedings extending over several years – father filed Notice of Discontinuance – best interests of children – mother to have sole parental responsibility – children to live with mother – spend time with father as agreed between parties.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 62B, 65D, 65DA

Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Sexton & Sexton [2012] FamCAFC 218

APPLICANT:

Ms Stubbs

RESPONDENT:

Mr Stubbs

INDEPENDENT CHILDREN’S LAWYER:

Mr T Stephen

FILE NUMBER:

ADC

1974

2009

DATE DELIVERED:

13 March 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

7 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lee

SOLICITOR FOR THE APPLICANT:

Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dubarry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That all previous parenting orders be discharged.
That the children D, born … 2009, and N, born … 2007, (‘the children’) live with the mother.
That the mother shall have sole parental responsibility in respect of decisions concerning the children’s long term care, welfare and development.
The father is to spend time with the children as agreed by the parties subject to the following restraints:
(a)       The father must ensure that during all times the children are with him they do not come into contact with Mr L or Mr R.
(b)       The father must ensure that during all times the children are with him they not be left alone in the company of Mr Y.
(c)       The father must not consume illicit drugs, or exceed the specified dosage of any prescribed drugs, when the children are in his care or during the 24 hours immediately before the children are to spend time with him.
(d)       The father is not to attend the mother’s home or any place of employment other than with the mother’s prior express consent.
All communications between the parties concerning the children be by email or SMS text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders. The parties are to give written communication of any change of email address and/or SMS text message service number within 24 hours of any change.
The mother is to keep the father advised as to the children’s school and any significant medical issues affecting the children.
That order 10 of the orders made 3 August 2009 be discharged and the registry do deliver up the children’s passports to 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

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 STUBBS & STUBBS

Details

AGLC: STUBBS & STUBBS [2014] FamCA 144
Case: [2014] FamCA 144
Decision Date: 13 March 2014

CaseChat Overview and Summary

In the matter of STUBBS & STUBBS, Berman J of the Family Court of Australia made orders concerning the parenting of two children, D and N. The dispute involved the living arrangements and parental responsibilities for the children, as well as the father's time with them, subject to certain conditions.

The court was required to determine the primary residence of the children, the allocation of parental responsibility for long-term decisions, the terms of the father's time with the children, and the method of communication between the parents regarding the children. Additionally, the court considered the discharge of previous parenting orders, including the appointment of an Independent Children's Lawyer, and the delivery of the children's passports.

Berman J ordered that the children live with the mother and that she have sole parental responsibility for decisions concerning their long-term care, welfare, and development. The father's time with the children was to be as agreed, but with specific restraints, including prohibitions on contact with certain individuals, drug consumption, and attendance at the mother's home or workplace without consent. Communication between the parties was restricted to email or SMS, limited to child-related matters, and required notification of any changes to contact details. The mother was to keep the father informed of the children's schooling and significant medical issues. Previous orders were discharged, including the appointment of an Independent Children's Lawyer, and the children's passports were to be delivered to the mother. The court also provided information regarding the obligations and consequences of contravening the orders.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the children D, born … 2009, and N, born … 2007, (‘the children’) live with the mother.

That the mother shall have sole parental responsibility in respect of decisions concerning the children’s long term care, welfare and development.

The father is to spend time with the children as agreed by the parties subject to the following restraints:

(a) The father must ensure that during all times the children are with him they do not come into contact with Mr L or Mr R.

(b) The father must ensure that during all times the children are with him they not be left alone in the company of Mr Y.

(c) The father must not consume illicit drugs, or exceed the specified dosage of any prescribed drugs, when the children are in his care or during the 24 hours immediately before the children are to spend time with him.

(d) The father is not to attend the mother’s home or any place of employment other than with the mother’s prior express consent.

All communications between the parties concerning the children be by email or SMS text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders. The parties are to give written communication of any change of email address and/or SMS text message service number within 24 hours of any change.

The mother is to keep the father advised as to the children’s school and any significant medical issues affecting the children.

That order 10 of the orders made 3 August 2009 be discharged and the registry do deliver up the children’s passports to 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 entitles “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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