Annissa and Haura and Anor - [2017] FamCA 651

FAMILY COURT OF AUSTRALIA

ANNISSA & HAURA AND ANOR

[2017] FamCA 651

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the Secretary, Department of Family and Community Services has intervened – Where significant history of parental neglect and lack of supervision as to the children – Where significant history of Departmental intervention – Where children removed from the mother’s care by order in late 2015 – Where children shortly before final hearing restored to the mother’s care by the Department – Where father refuses to engage with the Department – Where consideration of the children’s best interests – Where Minister for Family and Community Services to hold parental responsibility for the children and for the time the children spend with both parents.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA
Acts Interpretation Act 1901 (Cth) s 2C

Aldridge & Keaton [2009] FamCAFC 229
Department of Family and Community & Annissa and Anor [2015] FamCA 1131
Donnell & Dovey [2010] FamCAFC 15
Goode & Goode[2006] FamCA 1346
McCall & Clark [2009] FamCAFC 92
Mazorski v Albright[2007] FamCA 520
MRR v GRR [2010] HCA 4
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53

APPLICANT:

Mr Annissa

RESPONDENT:

Ms Haura

INTERVENOR:

Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Ms Bevan

FILE NUMBER:

SYC

2008

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19, 20 and 21 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Patricia J O'Shane Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Bernie

SOLICITOR FOR THE RESPONDENT:

Shelly Legal

COUNSEL FOR THE INTERVENOR:

Ms Christie

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sarah Bevan Family Lawyers

Orders

That all previous parenting orders in relation to the children B born … 2004, C born … 2005 and D born … 2007 be discharged.
That the Secretary for Family and Community Services have sole parental responsibility for the children save and except for cultural and religious matters.
That the mother have parental responsibility for the children as to cultural and religious matters.
That the children shall live with and spend time with the mother and father as directed by the Secretary or the delegate of the Secretary of the Department of Family and Community Services.
It is noted that that the Secretary has sought live with and spend time with orders to the effect:
(a)that the children live with the mother;
(b)that the child B spend time with the father as per her wishes;
(c)that the father spend time with the children C and D supervised by the Secretary or his delegate for a period of 12 months after which time the need for supervision be reviewed.
THAT BY CONSENT the applicant father pay by way of contribution to the Independent Children’s Lawyer’s costs the sum of $9,411.00 to Legal Aid NSW within six…

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.

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Details

Case: [2017] FamCA 651
Decision Date: 25 August 2017

CaseChat Overview and Summary

This matter came before Foster J in the Family Court of Australia, concerning parenting orders for three children: B (born 2004), C (born 2005), and D (born 2007). The dispute involved the future care and responsibility for these children, with the Secretary for Family and Community Services being a party to the proceedings.

The central legal issue before the court was to determine the appropriate parenting arrangements for the children, considering the existing orders and the circumstances presented. This involved deciding who should have parental responsibility, where the children should live, and how they should spend time with their parents, while also addressing the specific considerations of cultural and religious matters.

Foster J's reasoning led to a significant alteration of previous parenting orders. The court discharged all prior orders relating to the children. The Secretary for Family and Community Services was granted sole parental responsibility for the children, with a specific carve-out for cultural and religious matters, which were assigned to the mother. The court further ordered that the children would live with and spend time with both the mother and father, as directed by the Secretary or their delegate.

Orders

Orders of the court

That all previous parenting orders in relation to the children B born … 2004, C born … 2005 and D born … 2007 be discharged.

That the Secretary for Family and Community Services have sole parental responsibility for the children save and except for cultural and religious matters.

That the mother have parental responsibility for the children as to cultural and religious matters.

That the children shall live with and spend time with the mother and father as directed by the Secretary or the delegate of the Secretary of the Department of Family and Community Services.

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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