Bush and Bush and Anor - [2019] FCCA 2081

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUSH & BUSH & ANOR

[2019] FCCA 2081

Catchwords:
FAMILY LAW – Children – application by grandmother for sole parental responsibility – where the mother has exposed the child to abuse and neglect – where the father is not present in the child’s life – best interests of the child – consideration of the benefit to the child to have a meaningful relationship with both parents and the need to protect the child – due process – determination to proceed on an undefended basis – Makita & Sprowles issue raised with family report – child’s right to identification and practice of culture.

Legislation:

Family Law Act 1975 (Cth), ss.91B, 60CA, 60CC, 65DAA

Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Allesch v Maunz [2000] HCA 40
Gordon & Gordon [2015] FamCA 616
Rice & Miller [1993] FamCA 87
Aldridge & Keaton (2009) 42 Fam LR 369
Burton & Churchin & Anor [2013] FamCAFC 180
Haigh & Holt [2003] FamCA 1381

Applicant:

MS BUSH

First Respondent:

MS A BUSH

Second Respondent:

MR SCOTT

File Number:

PAC 579 of 2017

Judgment of:

Judge Harman

Hearing date:

24 May 2019

Date of Last Submission:

24 May 2019

Delivered at:

Parramatta

Delivered on:

24 May 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Khalil of Khalil Family Lawyers Pty Ltd

Solicitors for the Independent Children’s Lawyer:

Ms Jenkins of Russell Kennedy Aitkin Lawyers

ORDERS

Discharge all prior parenting orders with respect to the child [X] (born … 2006).
[X]’s grandmother, Ms Bush, shall have sole parental responsibility for [X].
[X] shall live with his grandmother, Ms Bush.
Pursuant to s.68B Family Law Act 1975 each of [X]’s parents, Ms A Bush and Mr Scott, shall be and are hereby restrained from removing [X] from Ms Bush’s care.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
IT IS NOTED that these Orders are made in the absence of the Respondent and accordingly, the provisions of rule 16.05 of the Federal Circuit Court Rules 2001 apply, such that the Respondent is entitled to make Application to reopen the proceedings and be heard.
In the event that the Respondent should wish to make an application to reopen the proceedings and be heard, then the Respondent shall:
(a)No later than close of business June 21 2019, make a request in writing, by email, direct to my Associate in accordance with Federal Circuit Court protocols regarding communication with Chambers seeking a relisting of the proceedings and explaining their non-attendance on this occasion and on previous occasions; and
(b)Prior to or contemporaneous with the above request file and serve a Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Notice of Risk and failing the filing of such material any request for relisting by the Respondent shall not be acted upon.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then…

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: [2019] FCCA 2081
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the matter of *Bush and Bush and Anor*, heard before Judge Harman, the dispute concerned an application by the child's grandmother, Ms Bush, for sole parental responsibility for the child, [X]. The application was brought in circumstances where the child's mother had allegedly exposed [X] to abuse and neglect, and the father was not actively involved in the child's life.

The court was required to determine several key legal issues. These included the paramount consideration of the best interests of the child, specifically balancing the benefit of a meaningful relationship with both parents against the need to protect the child from harm. The court also considered issues of due process, including the determination to proceed on an undefended basis, and the implications of the *Makita & Sprowles* issue raised in the family report. Furthermore, the court addressed the child's right to the identification and practice of their culture.

Judge Harman reasoned that the mother's conduct had created a situation where the child's safety and well-being were compromised, necessitating a departure from the usual presumption of equal parental responsibility. The court applied the principles enshrined in the *Family Law Act 1975*, particularly those relating to the best interests of the child, and considered the evidence presented, including the family report, to assess the risks and benefits associated with different parenting arrangements. The court found that granting sole parental responsibility to the grandmother was in [X]'s best interests, given the circumstances of parental neglect and absence.

Consequently, the court ordered the discharge of all prior parenting orders concerning [X]. Ms Bush was granted sole parental responsibility and the child was ordered to live with her. The court further made orders restraining both parents from removing [X] from Ms Bush's care pursuant to s.68B of the *Family Law Act 1975*, and discharged the Independent Children's Lawyer.

Orders

Orders of the court

Discharge all prior parenting orders with respect to the child [X] (born … 2006).

[X]’s grandmother, Ms Bush, shall have sole parental responsibility for [X].

[X] shall live with his grandmother, Ms Bush.

Pursuant to s.68B Family Law Act 1975 each of [X]’s parents, Ms A Bush and Mr Scott, shall be and are hereby restrained from removing [X] from Ms Bush’s care.

Discharge the Independent Children’s Lawyer with the Court’s thanks.

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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