Tony & Masjid - [2007] FamCA 1607

FAMILY COURT OF AUSTRALIA

DYSON & DYSON

[2007] FamCA 1607

FAMILY LAW – CHILDREN – Final hearing of a LAT procedure and orders made by consent consequent upon strong recommendations made by the Family Consultant – Children suffering nemaline myopathy requiring special consideration – Estrangement from their father

Family Law Act 1975 (Cth)

APPLICANT:

Ms Dyson

RESPONDENT:

Mr Dyson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

3552

2005

DATE DELIVERED:

10 December 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Guest J

HEARING DATE:

10 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fatouros

SOLICITOR FOR THE APPLICANT:

Victoria Legal Aid

COUNSEL FOR THE RESPONDENT:

Mr Pannifex

SOLICITOR FOR THE RESPONDENT:

John Burgess & Co.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sue Macgregor

Orders

That save that the wife have sole responsibility for the long term health issues relating to the children, the Husband and Wife shall have joint responsibility for the long term care, welfare and development of R born … October 1990, S born … June 1993 and B born … November 1992 (“the children”).
That the children live with the Wife.
That the Husband and the Wife and the children attend family therapy at a Centre nominated by the Independent Children’s Lawyer to address the children’s issues with their Father in an endeavour to improve the relationship and the time spent together AND THAT such counselling continue for a maximum of 6 months from commencement date AND THAT the parties shall seek funding for the costs of such, failing which each party shall pay half the reasonable costs of such therapy.
That the children’s time with the Husband shall be such time as is recommended by the counsellor conducting the Family Therapy and agreed to by the Husband and Wife and the children.
That the children attend at a time nominated by the children and agreed to by the Husband at the Husband’s residence, …, F on a day prior to Christmas Day 2007 and spend time with their Father and receive Christmas presents for a period of time nominated by the children.
That all previous parenting orders are hereby discharged.
That the appointment of the Independent Children’s Lawyer be discharged.
That all extant applications be otherwise dismissed and the proceedings be removed from the Active Pending Cases List.

NOTATION

It is noted the Husband wishes the children to be aware he is available at all times to spend time with or talk to them if all or any of them so desires.
The husband be at liberty to discuss any medical issues relating to the children with their treating health professionals.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3552 of 2005

MS DYSON

Applicant

And

MR DYSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This matter comes…

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 Tony & Masjid

Details

AGLC: Tony & Masjid [2007] FamCA 1607
Case: [2007] FamCA 1607
Decision Date: 27 August 2007

CaseChat Overview and Summary

In the matter of *Tony & Masjid*, Guest J of the Federal Circuit Court of Australia considered parenting orders concerning three children. The dispute involved the allocation of parental responsibilities and the children's living arrangements and time spent with each parent.

The court was required to determine the extent of joint and sole responsibility for the children's long-term care, welfare, and development, including specific considerations for health issues. Further, the court needed to establish the children's primary residence and the nature and extent of their time with the husband, as well as the necessity and form of family therapy.

Guest J ordered that the husband and wife share joint responsibility for the children's long-term care, welfare, and development, with the wife having sole responsibility for long-term health issues. The children were ordered to live with the wife. The court also mandated attendance at family therapy for a maximum of six months to address the children's issues with their father and improve their relationship, with the children's time with the husband to be determined by the counsellor and agreed upon by the parties and children. Specific provisions were made for the children to spend time with the husband at his residence prior to Christmas 2007 to receive presents. All previous parenting orders were discharged, the Independent Children's Lawyer's appointment discharged, and all extant applications dismissed.

Orders

Orders of the court

That save that the wife have sole responsibility for the long term health issues relating to the children, the Husband and Wife shall have joint responsibility for the long term care, welfare and development of R born … October 1990, S born … June 1993 and B born … November 1992 (“the children”).

That the children live with the Wife.

That the Husband and the Wife and the children attend family therapy at a Centre nominated by the Independent Children’s Lawyer to address the children’s issues with their Father in an endeavour to improve the relationship and the time spent together AND THAT such counselling continue for a maximum of 6 months from commencement date AND THAT the parties shall seek funding for the costs of such, failing which each party shall pay half the reasonable costs of such therapy.

That the children’s time with the Husband shall be such time as is recommended by the counsellor conducting the Family Therapy and agreed to by the Husband and Wife and the children.

That the children attend at a time nominated by the children and agreed to by the Husband at the Husband’s residence, …, F on a day prior to Christmas Day 2007 and spend time with their Father and receive Christmas presents for a period of time nominated by the children.

That all previous parenting orders are hereby discharged.

That the appointment of the Independent Children’s Lawyer be discharged.

That all extant applications be otherwise dismissed and the proceedings be removed from the Active Pending Cases List.

NOTATION

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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