SULLIVAN & PROSSER - [2014] FCCA 3129

FEDERAL CIRCUIT COURT OF AUSTRALIA

SULLIVAN & PROSSER

[2014] FCCA 3129

Catchwords:
FAMILY LAW – Parenting – protection from harm – consideration of unacceptable risk – “ice” use – aboriginality – notice of proceedings and orders sought – matter proceeded on an undefended basis.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61F, 65DAA(5), 65DAC, 69ZW

Allesch v Maunz [2000] HCA 40
Jones & Dunkel (1959) 101 CLR 298
Johnson & Page [2007] FamCA 1235
Deacon & Castle [2013] FCCA 691

Applicant:

MR SULLIVAN

Respondent:

MS PROSSER

File Number:

AYC 134 of 2013

Judgment of:

Judge Harman

Hearing date:

28 October 2014

Date of Last Submission:

28 October 2014

Delivered at:

Albury

Delivered on:

28 October 2014

REPRESENTATION

Solicitors for the Applicant:

Ms Morrissey of Robb & Associates Solicitors

No appearance by the Respondent

Solicitors for the Independent Children’s Lawyer:

Ms Dwyer of Legal Aid NSW Wagga Wagga Family Law

ORDERS

Leave is granted to the Respondent’s solicitor to withdraw from the proceedings.
Discharge all prior orders in these proceedings.
X born (omitted) 2010 shall live with his father.
The father Mr Sullivan shall have sole parental responsibility for X.
X shall spend time with his mother Ms Prosser at such times and upon such terms and conditions as are agreed between the parents.
Pursuant to S.65DA(2) and S.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

IT IS NOTED that publication of this judgment under the pseudonym Sullivan & Prosser is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ALBURY

AYC 134 of 2013

MR SULLIVAN

Applicant

And

MS PROSSER

Respondent

REASONS FOR JUDGMENT

These are proceedings involving competing applications with respect to care arrangements for a young child, X, born (omitted) 2010, (four years of age).
The parties to the proceedings are his parents, Mr Sullivan who is the Applicant and his father, and Ms Prosser, who is the Respondent, and his mother.
Ms Prosser does not appear today. That is somewhat unfortunate, not only as regards her interests but also this young child. X is described in the Family Report as:
…loving and having clear affection for both of his parents.
Ms Prosser would appear (as is sagely noted in the Family Report) to be presently bedevilled by a number 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 SULLIVAN & PROSSER

Details

AGLC: SULLIVAN & PROSSER [2014] FCCA 3129
Case: [2014] FCCA 3129
Decision Date: 28 October 2014

CaseChat Overview and Summary

In the matter of *Sullivan & Prosser*, heard before Judge Harman, the dispute concerned parenting arrangements for a child, X, born in 2010. The orders indicate a resolution was reached regarding the child's residence, parental responsibility, and time spent with each parent.

The court was required to determine the living arrangements for X, including who the child would live with and the allocation of parental responsibility. Additionally, the court needed to establish the terms upon which X would spend time with his mother, Ms Prosser, and address the withdrawal and dismissal of all outstanding applications and responses, effectively resolving all matters awaiting hearing.

Judge Harman ordered that X shall live with his father, Mr Sullivan, who was granted sole parental responsibility. X is to spend time with Ms Prosser on terms agreed between the parents. The court also made specific provisions regarding the particulars of these orders, including the consequences of contravention and assistance for compliance, as detailed in an attached Fact Sheet. All prior orders were discharged, and outstanding applications and responses were withdrawn and dismissed. Finally, provisions were made for the return or destruction of exhibits and subpoenaed material upon the expiration of the appeal period, assuming no appeal is lodged.

Orders

Orders of the court

Leave is granted to the Respondent’s solicitor to withdraw from the proceedings.

Discharge all prior orders in these proceedings.

X born (omitted) 2010 shall live with his father.

The father Mr Sullivan shall have sole parental responsibility for X.

X shall spend time with his mother Ms Prosser at such times and upon such terms and conditions as are agreed between the parents.

Pursuant to S.65DA(2) and S.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

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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