Thynne and Thynne - [2008] FMCAfam 379

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THYNNE & THYNNE

[2008] FMCAfam 379

FAMILY LAW ─ Children – interim parenting orders – family violence – requirement that husband’s time with the child be supervised.

Family Law Act 1975 (Cth)

Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334

Applicant:

MS THYNNE

Respondent:

MR THYNNE

File number:

MLC 1558 of 2008

Judgment of:

Walters FM

Hearing date:

14 April 2008

Date of last submission:

14 April 2008

Delivered at:

Melbourne

Delivered on:

14 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr D.E. Whitchurch

Solicitors for the Applicant:

Samantha Ward Pty

Counsel for the Respondent:

Mr R.P. Hutchins

Solicitors for the Respondent:

Whyte Just and Moore

ORDERS

IT IS ORDERED THAT:

The Orders made at Geelong Magistrates Court on 30 January 2008 be discharged.
Until further Order, the child M born in 2005 live with the wife.
The husband and the wife forthwith make an application to and sign all documents necessary to enrol at the [B] Contact Centre, Geelong.
Until further Order, the husband spend time with the said child at the [B] Contact Centre ─ such time to be supervised, and take place at such times as directed by the Director of the Centre.
The husband attend Mr M, Psychiatrist, or such other person as nominated by the independent children’s lawyer, for the purpose of preparation of a report regarding the husband’s mental health and parenting capacity.
The former matrimonial home at Property O, in the State of Victoria, be sold forthwith out of Court, and the proceeds of sale be applied as follows:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the said property; and
(c)the balance remaining to be held in trust on behalf of both parties by the applicant’s solicitors pending further order of the Court.
Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the said child be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
Until further Order, both parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said child from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Airport Watch list in force at all points…

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 Thynne and Thynne

Details

AGLC: Thynne and Thynne [2008] FMCAfam 379
Case: [2008] FMCAfam 379
Decision Date: 14 April 2008

CaseChat Overview and Summary

Thynne and Thynne involved a dispute over the custody and care of a child born in 2005. The case was heard in the Family Court of Australia. The husband and wife were embroiled in a contentious battle for the custody of their child, with the wife seeking sole custody and the husband contesting this.

The court was tasked with determining the best interests of the child, considering various factors including the child's need for stability, the parents' ability to provide a safe and nurturing environment, and the potential impact of removing the child from Australia. The court also had to address the husband's mental health and parenting capacity, as well as the financial arrangements related to the former matrimonial home.

The Family Court of Australia concluded that the child's immediate welfare was best served by remaining with the wife, subject to supervised visitation by the husband. The court mandated that both parents engage with a contact centre to facilitate this arrangement. Furthermore, the court ordered an independent assessment of the husband's mental health and parenting capacity. The former matrimonial home was to be sold, with the proceeds managed by the court until further order. The court also appointed an Independent Children's Lawyer to represent the child's interests, ensuring that the child's voice was heard in the proceedings. To prevent the child from being removed from Australia, the court issued an injunction against both parents and their agents. The matter was adjourned for further hearings to address ongoing issues and make a final determination regarding custody and care.

Orders

Orders of the court

IT IS ORDERED THAT:

The Orders made at Geelong Magistrates Court on 30 January 2008 be discharged.

Until further Order, the child M born in 2005 live with the wife.

The husband and the wife forthwith make an application to and sign all documents necessary to enrol at the [B] Contact Centre, Geelong.

Until further Order, the husband spend time with the said child at the [B] Contact Centre ─ such time to be supervised, and take place at such times as directed by the Director of the Centre.

The husband attend Mr M, Psychiatrist, or such other person as nominated by the independent children’s lawyer, for the purpose of preparation of a report regarding the husband’s mental health and parenting capacity.

The former matrimonial home at Property O, in the State of Victoria, be sold forthwith out of Court, and the proceeds of sale be applied as follows:

(a) first, to pay all costs, commissions and expenses of the sale;

(b) secondly, to discharge the mortgage and any other encumbrance affecting the said property; and

(c) the balance remaining to be held in trust on behalf of both parties by the applicant’s solicitors pending further order of the Court.

Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the said child be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.

Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

10.

Until further Order, both parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said child from the Commonwealth of Australia.

11.

The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch list until further order of the Court.

12.

The matter be adjourned:

(a)

for interim hearing before Federal Magistrate Riethmuller on

29 May 2008

at 10.00 a.m. (with an estimated hearing time of 1-2 hours) ; and

(b)

for final hearing before a Federal Magistrate Riethmuller on

30 October 2008

at 10.00 a.m. (with an estimated hearing time of

3 days).

13.

In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the

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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