AUDEN & FIELDING - [2017] FamCA 764

FAMILY COURT OF AUSTRALIA

AUDEN & FIELDING

[2017] FamCA 764

FAMILY LAW – CHILDREN – Best Interests of the Child – Undefended hearing – Where the father has discontinued his Response – Where there are allegations the father sexually abused the child – Where two Joint Investigation and Response Team investigations substantiated the allegations of sexual abuse – Where the father has been named a person causing harm by the Department of Family and Community Services – Where the father has spent no time with the child for over two years – Where the child has expressed fear of the father – Where there are concerns as to the child’s mental health – Where the child is receiving counselling – Where the mother seeks an order for the child’s surname to be changed – Where it is appropriate to make orders as sought by the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has discontinued his Response to the mother’s Initiating Application – Where the father has withdrawn from proceedings – Where it is appropriate for the matter to proceed to undefended final hearing.

Births Deaths and Marriages Registration Act 1995 (NSW) s 28(5)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 68B, 68C, 69ZN
Family Law Rules 2004 (Cth) r 16.07

Deiter v Deiter [2011] FamCAFC 82 Flanagan v Handcock (2000) 27 Fam LR 615 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 In the Marriage of Beach and Stemmler (1979) FLC 90-692 In the Marriage of Chapman and Palmer (1978) FLC 90-510 In the Marriage of George and Radford (1976) FLC 90-060 Jarrah & Fadel [2014] FamCAFC 14 Johnson & Page [2007] FamCA 1235 M v M (1988) 166 CLR 69; [1988] HCA 68 Malmo & Hartigan [2010] FAMCA 1182 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Reynolds and Sherman [2016] FamCAFC 240 W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235
APPLICANT:	Ms Auden

RESPONDENT:

Mr Fielding

INDEPENDENT CHILDREN’S LAWYER:

Sarah Bevan Family Lawyers

FILE NUMBER:

PAC

3626

2015

DATE DELIVERED:

27 September 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

15 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Soden Legal

SELF-REPRESENTED RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sarah Bevan Family Lawyers

Orders

That the Applicant Mother have sole parental responsibility for the child B born … 2004 (“the child”).
That the child live with the mother.
That the father have no contact with the child.
That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father be and is hereby restrained from entering or remaining in any place of residence or education of the child, harassing, stalking, intimidating or otherwise approaching or contacting the mother and the child.
In the event the father does not comply with Order (4) and…

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 AUDEN & FIELDING

Details

AGLC: AUDEN & FIELDING [2017] FamCA 764
Case: [2017] FamCA 764
Decision Date: 27 September 2017

CaseChat Overview and Summary

In the matter of *Auden & Fielding*, Hannam J of the Family Court of Australia considered an application by the mother concerning her child. The father had discontinued his Response to the mother's Initiating Application, effectively withdrawing from the proceedings. The hearing proceeded as undefended.

The primary legal issues before the court were whether to make final orders regarding the child's living arrangements, parental responsibility, contact, and surname change, in circumstances where the father had withdrawn from the proceedings and serious allegations of sexual abuse against the child had been made. The court was also required to consider the implications of two Joint Investigation and Response Team investigations substantiating these allegations, the father being named a person causing harm by the Department of Family and Community Services, the child's expressed fear of the father, and concerns regarding the child's mental health.

Hannam J applied the paramount consideration of the best interests of the child. The court noted the father had not spent time with the child for over two years, the child expressed fear of the father, and the child was receiving counselling for mental health concerns. Given the substantiated allegations of sexual abuse and the father's withdrawal from the proceedings, the court found it appropriate to make the orders sought by the mother.

The court ordered that the mother have sole parental responsibility for the child, that the child live with the mother, and that the father have no contact with the child. Furthermore, the father was restrained from entering or remaining in the child's place of residence or education, and from harassing, stalking, intimidating, or otherwise approaching or contacting the mother and child. Police were authorised to arrest the father without warrant for breaches of this injunction. The mother was also authorised to change the child's surname to 'Auden'.

Orders

Orders of the court

That the Applicant Mother have sole parental responsibility for the child B born … 2004 (“the child”).

That the child live with the mother.

That the father have no contact with the child.

That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father be and is hereby restrained from entering or remaining in any place of residence or education of the child, harassing, stalking, intimidating or otherwise approaching or contacting the mother and the child.

In the event the father does not comply with Order (4) and a police officer believes, on reasonable grounds, that the injunction has been breached then such police officer is authorised to arrest the father without warrant pursuant to the provision of section 68C of the Act.

That the mother is to do all things and sign all documents necessary to change the surname of B to ‘Auden’ with the Registry of Births Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the child and that pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form ‘B Auden’.

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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