Traynor and Lerner - [2018] FamCA 875

FAMILY COURT OF AUSTRALIA

TRAYNOR & LERNER

[2018] FamCA 875

FAMILY LAW – CHILDREN – interim orders – where the mother and Independent Children’s Lawyer seek that the time the child spends with the father be suspended pending the trial – where the mother and the Independent Children’s Lawyer seek that the child spend supervised time with the father to be supervised by the paternal grandmother – where the father opposes the application – where the Family Report contains a number of disclosures made by the child to the family consultant which indicate that the child is at risk of physical and psychological harm – where the family consultant has raised significant concerns as to the impact of the father’s behaviours on the child’s emotional wellbeing – where there is ongoing behaviour of the father that gives rise to the potential for both physical and psychological harm to the child – order made that until further order the child to spend supervised time with the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Traynor

RESPONDENT:

Mr Lerner

INDEPENDENT CHILDREN’S LAWYER:

Kordell Lawyers

FILE NUMBER:

MLC

1250

2013

DATE DELIVERED:

15 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

15 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Renwick

SOLICITOR FOR THE APPLICANT:

BJT Lawyers

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Pannifex

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Kordell Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

That the following orders be suspended:
(a)       Order 4 of the orders made August 2015;
(b)       Orders 3 and 8(a) of the orders made 6 June 2017; and
(c)      Orders 5 and 6 of the orders made 29 August 2017.
That upon the paternal grandmother, MS LERNER, providing an undertaking to the Independent Children’s Lawyer that she will supervise time, the father spend time with the child X born … 2008 (“the child”) each alternate Sunday from 10.00am to 5.00pm (commencing 21 October 2018).
That the child otherwise live with the mother.
That the mother have leave to file a Further Amended Initiating Application with such application to be filed no later than 4.00pm on 22 October 2018.
That the time for the father’s compliance with order 5 of the orders dated 7 June 2018 (“the orders”) be extended to 4.00pm on 5 November 2018.
That the time for the mother’s compliance with order 6 of the orders be extended to 4.00pm on 12 November 2018.
That the Application in a Case filed 8 October 2018 be dismissed.
That 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.
That…

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 Traynor and Lerner

Details

AGLC: Traynor and Lerner [2018] FamCA 875
Case: [2018] FamCA 875
Decision Date: 15 October 2018

CaseChat Overview and Summary

In the matter of *Traynor and Lerner*, Johns J considered an application concerning the welfare of a child. The dispute involved the father, Mr Traynor, and the paternal grandmother, Ms Lerner, in relation to the child's living arrangements and time with the father.

The court was required to determine several legal issues, including the suspension of existing court orders, the conditions under which the father would spend time with the child, the child's primary residence, and the filing of amended applications. The court also addressed the father's compliance with previous orders and the dismissal of an application filed by the father. Furthermore, the court considered the provision of information regarding the obligations and consequences of contravening the orders, and the Independent Children’s Lawyer's request for documents from the Department of Human Services.

Johns J ordered the suspension of specific prior orders and, upon Ms Lerner providing an undertaking to supervise, permitted the father to spend time with the child each alternate Sunday. The child was to otherwise live with the mother. The mother was granted leave to file a Further Amended Initiating Application, and extensions were granted for the father's and mother's compliance with certain previous orders. The father's Application in a Case filed on 8 October 2018 was dismissed. The court also ordered that particulars of obligations, consequences of contravention, and assistance details be included in a Fact Sheet attached to the orders, and granted the Independent Children’s Lawyer leave to issue a subpoena for documents from the Department of Human Services concerning the child.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER

That the following orders be suspended:

(a) Order 4 of the orders made August 2015;

(b) Orders 3 and 8(a) of the orders made 6 June 2017; and

That upon the paternal grandmother, MS LERNER, providing an undertaking to the Independent Children’s Lawyer that she will supervise time, the father spend time with the child X born … 2008 (“the child”) each alternate Sunday from 10.00am to 5.00pm (commencing 21 October 2018).

That the child otherwise live with the mother.

That the mother have leave to file a Further Amended Initiating Application with such application to be filed no later than 4.00pm on 22 October 2018.

That the time for the father’s compliance with order 5 of the orders dated 7 June 2018 (“the orders”) be extended to 4.00pm on 5 November 2018.

That the time for the mother’s compliance with order 6 of the orders be extended to 4.00pm on 12 November 2018.

That the Application in a Case filed 8 October 2018 be dismissed.

That 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.

That the Independent Children’s Lawyer have leave to issue a subpoena to produce documents directed to Ms B, Department of Human Services in respect of all reports in relation to the child X born … 2008.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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