WILSON & HARRIS - [2013] FamCA 23

FAMILY COURT OF AUSTRALIA

WILSON & HARRIS	[2013] FamCA 23
FAMILY LAW - CHILDREN - Rule 11.02(2) Family Law Rules 2004 (Cth) - Where Father failed to comply with the procedural rules of the Court – Where the Father has filed virtually nothing in support of his Application in a Case – Leave granted to proceed on an undefended basis – Rosa and Rosa [2009] FamCAFC 81 – Brief reasons must be given for the Orders made – s 60CC – Where the children’s welfare will be advanced solely by the children being in the care of the Mother – Children to live with Mother – Mother to have sole parental responsibility – Father not to have contact with children.
APPLICANT:		Mr Wilson

RESPONDENT:

Ms Harris

INDEPENDENT CHILDREN’S LAWYER:

Ms S O’Reilly, Solicitor

FILE NUMBER:

BRC

8087

2008

DATE DELIVERED:

29 January 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

29 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	No appearance by the Applicant Father
COUNSEL FOR THE RESPONDENT:	The Respondent Mother appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kirkman-Scroope of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MTM Lawyers

Orders

ON AN UNDEFENDED BASIS IT IS ORDERED THAT:

All previous Orders be discharged.

The children, S born on … February 2000, J born on … September 2001 and H born on … April 2004 shall live with the Mother.
The Mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of the children.

There be no Order for the children to spend time or communicate with the Father.
All outstanding applications be dismissed.
The Independent Children’s Lawyer be discharged.

Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Harris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8087 of 2008

Mr Wilson

Applicant

And

Ms Harris

Respondent

REASONS FOR JUDGMENT

This is an application on the part of Mr Wilson, hereinafter referred to as the applicant, for parenting orders in relation to three children of his relationship with the respondent, Ms Harris, the children being the child S, born in February 2000, the child J born in September 2001, and the child H, born in April 2004. The father instituted, as I have said, an application for parenting. But since the application, he has…

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 WILSON & HARRIS

Details

AGLC: WILSON & HARRIS [2013] FamCA 23
Case: [2013] FamCA 23
Decision Date: 29 January 2013

CaseChat Overview and Summary

In the matter of *Wilson & Harris*, Bell J considered an application concerning the welfare of three children. The proceedings were brought on an undefended basis, indicating that the Father did not participate in the hearing.

The central legal issues before the court were the living arrangements for the children, the allocation of parental responsibility for long-term decisions, and whether any time or communication should occur between the children and the Father. The court was also required to determine the disposition of outstanding applications and the role of the Independent Children’s Lawyer.

Bell J ordered that all previous orders be discharged. The court determined that the children, S, J, and H, shall live with the Mother and that the Mother shall have sole parental responsibility for all major long-term issues concerning the children, as defined by the *Family Law Act 1975*. Crucially, the court made no order for the children to spend time or communicate with the Father. All outstanding applications were dismissed, and the Independent Children’s Lawyer was discharged. The court also directed that a document detailing the obligations, consequences of contravention, and support services related to these parenting orders be annexed to the final orders.

Orders

Orders of the court

ON AN UNDEFENDED BASIS IT IS ORDERED THAT:

All previous Orders be discharged.

The children, S born on … February 2000, J born on … September 2001 and H born on … April 2004 shall live with the Mother.

The Mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of the children.

There be no Order for the children to spend time or communicate with the Father.

All outstanding applications be dismissed.

The Independent Children’s Lawyer be discharged.

Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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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