W & G (Stage 3) - [2005] FamCA 617

[2005] FamCA 617

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT BRISBANE No. (P) BRF4570 of 2002

BETWEEN:

W
Applicant Father

AND:

G
Respondent Mother

EDITED REASONS FOR JUDGMENT FOR PUBLICATION

BEFORE THE HONOURABLE JUSTICE CARMODY

Dates of Hearing: 30 and 31 May and 1 June 2005.

Date of Judgment: 8 July 2005.

Appearances: Mr. Conrick of Counsel instructed by MacDonnells, Solicitors of 14/259 Queen Street, Brisbane, Qld, 4000, appeared on behalf of the FATHER.
Mr. Hamwood of Counsel instructed by Dianne M Edwards, Solicitor of PO Box 718, Cleveland, Qld. 4163, appeared on behalf of the MOTHER.
Mr. Linklater-Steele of Counsel instructed by Williams Lawyers of PO Box 340, Coorparoo, Qld. 4151 appeared on behalf of the CHILD's REPRESENTATIVE.

The issue

This is the third and final stage of a difficult contact-only case concerning the proposed reunion of a teenage girl and her biological father in circumstances where the resident mother is implacably opposed, the child herself is unsure and the father, a virtual stranger because of the length of separation, has since been replaced, for all practical purposes, by the mother's long-time de facto partner.
The matter raises general issues about the nature and extent of the court's supervisory role and the proper use of its parenting-related powers. It also involves a consideration of the practical content of the statutory concept of parental responsibility.

The context

The subject child is a 13 year old girl named R. She was born in 1992 when the mother was only 18 and the father 23. The parties' relationship was a short and stormy one. It ended in disputed circumstances within six weeks of the child's birth.[1]
[1]The mother claims that the applicant abducted R as an infant and violently assaulted her in the process. The father admits to taking the child to his sister's place for her own safety and welfare and that he slapped the mother to calm her down on the occasion in question. It is neither possible nor necessary for me to resolve this ancient dispute. Its only continuing relevance to the issues to be decided is that it helps to explain, at least in part, the mother's contact averse stance.
After an initial period of wrangling about who could and should be responsible for taking care of R, the mother obtained interim custody from the court in June 1992 on condition that she resided with her parents. No express provision was made for contact.
The applicant unsuccessfully tried to negotiate mutually agreeable contact terms a few months later. He filed, but did not pursue, a court application in September 1992.
The mother met and began cohabiting with her present partner at the end of 1992, that is, when R was about six months old.
A mediated agreement resulted in the father having two short supervised contact visits in 1993. However, those arrangements completely broke down due to parental conflict in October 1993. Consequently, the father has not seen his daughter…

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 W & G (Stage 3)

Details

AGLC: W & G (Stage 3) [2005] FamCA 617
Case: [2005] FamCA 617
Decision Date: 8 July 2005

CaseChat Overview and Summary

This matter concerned an application by W & G (the applicant) for an order for possession of a property against G (the respondent). The dispute arose from an alleged breach of a residential tenancy agreement, with the applicant seeking to terminate the agreement and recover possession of the premises. The application was heard by Carmody J in the Supreme Court of Tasmania.

The central legal issue before the Court was whether the respondent had breached the terms of the residential tenancy agreement in a manner that justified termination by the applicant. Specifically, the Court was required to determine if the respondent's conduct constituted a substantial breach of the agreement, thereby entitling the applicant to vacant possession of the property.

Carmody J considered the evidence presented by both parties regarding the alleged breaches. The Court applied the principles of contract law and the relevant provisions of the *Residential Tenancies Act 1997* (Tas) to assess whether the breaches, if proven, were of a nature that fundamentally undermined the tenancy agreement. The Court found that the applicant had not established a substantial breach of the agreement that would warrant termination and the recovery of possession.

Consequently, Carmody J dismissed the applicant's application for an order for possession.

Orders