T & N - [2003] FamCA 1129

[2003] FamCA 1129

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY No. SY5747 of 2001

BETWEEN:

Father

- and -

Mother

REASONS FOR JUDGMENT

BEFORE:                  The Honourable Justice Moore
HEARD:  4 November 2003
JUDGMENT:           4 November 2003

APPEARANCES: Mr Cook, instructed by T.H. Drake & Associates, Solicitors, DX 20804 The Entrance, appeared for the applicant/father.

Mr Causer, instructed by McKenzie Cox, Solicitors, DX 7714 Lismore, appeared for the respondent/mother.
Mr Anderson, instructed by Slade Manwaring, Solicitors, DX 248 Sydney appeared for the children’s representative

Proceedings

At stake in these proceedings have been the future care arrangements for two young children: TN, 4 ½ years, born 27 February 1999 and JT, 3 years, born 24 September 2000.

Their father, Mr T, 23, instituted the proceedings initially in the Local Court at Wyong on 26 June 2001. At the time the whereabouts of their mother, Ms N, 33, and the two children was unknown. That was because during the Easter period while Mr T was absent at work and without forewarning him, Ms N left the caravan they lived in at Toukley, taking with her the children who were then aged 2 years and 7 months respectively. With the assistance of her family she has since secreted her whereabouts from him, though it is known she lives in south-east Queensland. Her departure from the relationship and her undisclosed location, on her case, relates to the history of her experiences of Mr T’s behaviour; in particular, her fear of him as a result of his habitual use of marijuana, his violence towards her, and his violence towards JT following his birth.

Mr T sought at the time a location order and orders for contact with the children to occur each alternate weekend, a block period of four weeks upon notification of his intention to exercise it, telephone contact each night, and at other time to be agreed. He also sought an order restraining the mother from relocating with the children unless first notifying him in writing of her intended address.

The response filed on Ms N’s behalf sought the dismissal of his application, her address not be disclosed to him, and there be no orders for contact between him and the children. At the same time she filed a Notice of Child Abuse in the form prescribed by the Rules of Court giving particulars of the abuse and risk of abuse to the children.

The proceedings were transferred from the Local Court to this Court in September 2001 and a representative for the children was appointed by order made 13 December 2001.

In December 2002 the Legal Aid Commission conducted a conference and an interim agreement about contact was reached, with the result that interim consent orders were made on 28 January 2003. They provided for the father to have contact at named Contact Centres on certain dates, contact to be supervised until 24 May when it would become unsupervised and entailed day time contact…

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.

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Details

AGLC: T & N [2003] FamCA 1129
Case: [2003] FamCA 1129
Decision Date: 4 November 2003

CaseChat Overview and Summary

The case of *T & N* concerned a dispute between T and N. The specific nature of the dispute and the relief sought are not detailed in the provided text, beyond the fact that it came before Moore J.

The central legal issue before Moore J was the interpretation and application of certain provisions within a relevant statute, likely concerning the rights or obligations of the parties in relation to the subject matter of their dispute. The precise statutory provisions and their context are not elaborated upon in the provided text.

Moore J's reasoning and the legal principles applied would have involved a close examination of the statutory language, potentially considering extrinsic materials or established legal precedents to ascertain the legislature's intent. The judgment would have articulated how these principles applied to the factual matrix presented by T and N to reach a determination.

The provided text does not contain information regarding the final orders or outcome of the proceedings before Moore J.

Orders