Carnegie and Anor and Casey - [2015] FamCA 1034

FAMILY COURT OF AUSTRALIA

CARNEGIE & ANOR & CASEY

[2015] FamCA 1034

FAMILY LAW – CHILDREN – application for orders by non-parents – where subject child has significant intellectual and mental health issues – where mother fails to engage in the proceedings – where the father after the proceedings part heard withdraws from the proceedings – consideration as to orders to be made in the best interests of the child – where orders for the child to live with the applicant non-parents supported by the independent children’s lawyer – where the mother spends time with the child by arrangement with the applicant non-parents – where some risk to the child if spending time with the father – where order made for the father to have supervised time or otherwise as agreed between the father and the applicant non-parents.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

1st APPLICANT:

Ms Carnegie

2nd APPLICANT:

Mr Carnegie

RESPONDENT:

Mr Casey

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

FILE NUMBER:

PAC

1958

2011

DATE DELIVERED:

25 November 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

29, 30 and 31 July, and 10 September 2015

REPRESENTATION

COUNSEL FOR THE 1ST AND 2ND APPLICANTS:

Mr Batey

SOLICITOR FOR THE 1ST AND 2ND APPLICANTS:

Conditsis Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Snelling

SOLICITOR FOR THE RESPONDENT:

Longman Hill Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

Orders

That Ms Carnegie and Mr Carnegie (“the Cousins”) have equal shared parental responsibility for C born … 2004 (“the child”).
That the child live with the Cousins.
That the child spend time with the Mother, Ms B (“the Mother”) at such times and under such circumstances as agreed between the Mother and the Cousins.
That for the purposes of facilitating the child’s time with the Mother, the Mother is to collect the child from and return the child to the Cousins’ residence unless otherwise agreed between the Cousins and the Mother.
That the child spend time with the Father, Mr Casey (“the Father”) at such times and under such circumstances as agreed between the Father and the Cousins, taking into consideration any opinion or recommendation from the child’s treating medical practitioners and/or therapists and any view expressed by the child.
That the Father communicate with the child by prepaid post.
The parties to keep each other informed of their residential address within 7 days of changing same.
That the Father be and is hereby restrained from approaching within 100 metres of the Cousins’ residence as it stands from time to time, at any school…

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 Carnegie and Anor and Casey

Details

AGLC: Carnegie and Anor and Casey [2015] FamCA 1034
Case: [2015] FamCA 1034
Decision Date: 25 November 2015

CaseChat Overview and Summary

This matter concerned an application for final parenting orders in the Federal Circuit and Family Court of Australia, before Foster J. The dispute involved the arrangements for a child born in 2004, with applications brought by Ms Carnegie and Mr Carnegie (referred to as "the Cousins") and Ms B ("the Mother"), and Mr Casey ("the Father").

The court was required to determine the nature of parental responsibility for the child, where the child would live, and the extent of time the child would spend with each of the Mother and the Father. Further issues included the practical arrangements for the child's time with each parent, communication between the Father and the child, and orders to protect the child and the Cousins from the Father.

Foster J made orders for equal shared parental responsibility, with the child to live with the Cousins. The child was to spend time with the Mother and the Father under circumstances to be agreed between the parties, with specific provisions for the Father's time including supervised contact on two occasions per year and a prohibition on the Father approaching the Cousins' residence or the child's school. The court also made orders restraining criticism of other parties in the child's presence and requiring parties to inform each other of residential addresses.

Orders

Orders of the court

That Ms Carnegie and Mr Carnegie (“the Cousins”) have equal shared parental responsibility for C born … 2004 (“the child”).

That the child live with the Cousins.

That the child spend time with the Mother, Ms B (“the Mother”) at such times and under such circumstances as agreed between the Mother and the Cousins.

That for the purposes of facilitating the child’s time with the Mother, the Mother is to collect the child from and return the child to the Cousins’ residence unless otherwise agreed between the Cousins and the Mother.

That the child spend time with the Father, Mr Casey (“the Father”) at such times and under such circumstances as agreed between the Father and the Cousins, taking into consideration any opinion or recommendation from the child’s treating medical practitioners and/or therapists and any view expressed by the child.

That the Father communicate with the child by prepaid post.

The parties to keep each other informed of their residential address within 7 days of changing same.

That the Father be and is hereby restrained from approaching within 100 metres of the Cousins’ residence as it stands from time to time, at any school or place that the child attends for any lessons, training or performance.

That the parties are not to criticise or denigrate the other parties or any of the other parties’ families in the presence of or within the hearing of the child.

10.

In addition to Order 5 herein, the child shall spend time with the Father as follows:

(a) On the first Thursday in June and the first Thursday in December each year with such time to be supervised by QQ Care for a period of two hours;

(b) That for the purposes of Order 10(a) the Father shall notify the Cousins in writing no less than 28 days prior to the first Thursday in June and December of his intention to spend time with the child;

(d) That the Father shall make all arrangements as necessary with QQ Care and shall be solely responsible for meeting the cost of the supervision.

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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