Traynor and Lerner (No. 2) - [2018] FamCA 1016

FAMILY COURT OF AUSTRALIA

TRAYNOR & LERNER (NO. 2)

[2018] FamCA 1016

FAMILY LAW – CHILDREN – where the Court hears a third final hearing in five years – where the basis of the mother’s application to discharge existing orders and allow only supervised time is the father’s risk-taking behaviour with nine year old daughter – where father does not file evidence in compliance with trial directions – where mother seeks to proceed “undefended” – where the Court permits cross-examination by father – where the Court finds the child is at risk – consideration of Court resources – final orders made for supervised time.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175; 82 ALJR 951; 258 ALR 14
Brown and Brown [2004] FamCA 1067
Deiter & Deiter[2011] FamCAFC 82
M v M [1988] HCA 68; 166 CLR 69
Malec v J C Hutton Pty Ltd[1990] HCA 20; (1990) 169 CLR 638
Rice v Asplund (1979) FLC 90–725
Sexton & Sexton [2012] FamCAFC 218
The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655
Tate and Tate (2000) FLC 93-047
Traynor & Lerner [2018] FamCA 875

B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569
Hon. J Fogarty A.M., “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249

APPLICANT:

Ms Traynor

RESPONDENT:

Mr Lerner

INDEPENDENT CHILDREN’S LAWYER:

Kordell Lawyers

FILE NUMBER:

MLC

1250

2013

DATE DELIVERED:

5 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Renwick

SOLICITOR FOR THE APPLICANT:

BJT Legal

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Radich

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kordell Lawyers

Orders

All existing parenting orders are discharged.
The mother have sole parental responsibility for all major long-term decisions about the parties’ child X (“the child”) born … 2008.
The child shall live with the mother.
Forthwith, each of the parents of the child enrol at the children’s contact centre nearest to E Town and do all things required of them to enable registration at the centre to commence supervised contact between the child and the father.
Upon the contact service having a supervised placement available to the parties, the child spend such time with her father under supervision as the service can provide.
For the purposes of paragraph (5) of these orders:
(a) The supervision continue for as long as the service can provide it or the parties otherwise agree to an alternative arrangement; and
(b) The service be provided with a copy of paragraphs 110 to 111 of the reasons for judgment published this day to ensure the supervisor has an understanding of the need for supervision.
For the purposes of s 65Y of the Family Law…

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 (No. 2)

Details

AGLC: Traynor and Lerner (No. 2) [2018] FamCA 1016
Case: [2018] FamCA 1016
Decision Date: 5 December 2018

CaseChat Overview and Summary

In *Traynor and Lerner (No. 2)*, Cronin J of the Federal Circuit and Family Court of Australia considered parenting orders concerning a child, X, born in 2008. The dispute involved the arrangements for the child's residence, contact with the father, and decision-making regarding major long-term issues.

The court was required to determine the appropriate parenting orders, including whether the child should live with the mother, the extent of the father's contact with the child, and who should have parental responsibility for major long-term decisions. Additionally, the court addressed issues related to the child's international travel and the discharge of the Independent Children's Lawyer.

Cronin J reasoned that given the circumstances, it was in the child's best interests for the mother to have sole parental responsibility for major long-term decisions and for the child to live with her. The court ordered supervised contact between the child and the father, commencing at a children's contact centre, with the supervision to continue as long as the service could provide it or the parties agreed otherwise. The court also permitted the child to travel internationally and specified that the mother was the only person who had not ceased to have parental responsibility for passport purposes. The Independent Children's Lawyer was discharged upon completion of certain requirements.

Orders

Orders of the court

All existing parenting orders are discharged.

The mother have sole parental responsibility for all major long-term decisions about the parties’ child X (“the child”) born … 2008.

The child shall live with the mother.

Forthwith, each of the parents of the child enrol at the children’s contact centre nearest to E Town and do all things required of them to enable registration at the centre to commence supervised contact between the child and the father.

Upon the contact service having a supervised placement available to the parties, the child spend such time with her father under supervision as the service can provide.

For the purposes of paragraph (5) of these orders:

(a) The supervision continue for as long as the service can provide it or the parties otherwise agree to an alternative arrangement; and

(b) The service be provided with a copy of paragraphs 110 to 111 of the reasons for judgment published this day to ensure the supervisor has an understanding of the need for supervision.

For the purposes of s 65Y of the Family Law Act 1975 (Cth) and s 11(1) (b) of the Australian Passports Act 2005 (Cth), the child is permitted to travel internationally outside the Commonwealth of Australia.

For the purposes of s 11(5) (a) (ii) of the Australian Passports Act 2005 (Cth) the mother is the only person who has not ceased to have parental responsibility.

For the purposes of s 121 of the Family Law Act 1975 (Cth), the mother is at liberty to provide a copy of these orders to any relevant school principal or health provider.

10.

Subject to the Independent Children’s Lawyer completing the requirements of paragraph 6 (b) of these orders, the order for the appointment of the Independent Children’s Lawyer is discharged.

11.

All extant proceedings are otherwise dismissed.

12.

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 this order.

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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