CHANEY & DANVILLE - [2020] FamCA 646

FAMILY COURT OF AUSTRALIA

CHANEY & DANVILLE

[2020] FamCA 646

FAMILY LAW – CHILDREN – Application by maternal grandmother to spend time and communicate with two children – the father and Independent Children’s Lawyer oppose the application – where both children have special needs – where the father has an acquired brain injury – father’s inability to cope with orders as proposed by the maternal grandmother – where maternal grandmother has not seen the children since 2017 – allegations of sexual abuse perpetrated by the maternal grandfather – consideration of best interests of the children – orders made as proposed by the father and Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 62G, 67Z

Bell & Nahos [2016] FamCAFC 244
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPLICANT:

Ms Chaney

RESPONDENT:

Mr Danville

INDEPENDENT CHILDREN’S LAWYER:

Bentleigh Family Lawyers

FILE NUMBER:

MLC

3463

2018

DATE DELIVERED:

11 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

6 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cash

SOLICITOR FOR THE APPLICANT:

Rodriguez Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kiernan

SOLICITOR FOR THE RESPONDENT:

Marcou and Associates Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Foong

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bentleigh Family Lawyers

Orders

All previous parenting orders be discharged.
The father have sole parental responsibility for the children X born … 2006 and Y born … 2008 (‘the children’).
The children live with the father.
The children spend no time with, and have no communication with, the maternal grandmother.
The maternal grandmother and her agents or servants, be and are hereby restrained by injunction from:-
(a)       contacting or approaching the children;
(b)       locating, following, and/or keeping the children under surveillance;
(c)       attending any school, venue for extra-curricular activities and/or venue for medical or allied health treatment, that the children may attend;
(d)       attending the father’s residence without the written consent of the father;
(e)       publishing on the internet, by email or other electronic communication any material about the father and/or the children, or any of them; and/or
(f)        discussing these proceedings or any other proceedings relating to the children.
The parties are restrained from speaking in a derogatory manner about the other and their family members, either directly to the children or within the children’s hearing or allowing any other person to do so.
The appointment of the Independent Children’s Lawyer be discharged.
Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel.
All extant applications including the maternal grandmother’s Amended Initiating Application filed 4 May 2020 and the father’s Further Amended Response to Initiating Application filed 27 May 2020 be otherwise dismissed.

Notation:-

A.Pursuant to s65DA(2) and s62B of the Family Law Act 1975 (Cth) 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 the parties…

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 CHANEY & DANVILLE

Details

AGLC: CHANEY & DANVILLE [2020] FamCA 646
Case: [2020] FamCA 646
Decision Date: 11 August 2020

CaseChat Overview and Summary

In the matter of *Chaney & Danville*, Hartnett J of the Federal Circuit and Family Court of Australia made orders concerning the parenting of two children, X and Y. The dispute involved the father and the maternal grandmother, with the court ultimately discharging all previous parenting orders.

The court was required to determine the primary care arrangements for the children and the extent of the maternal grandmother's involvement, if any, in their lives. This included considering whether to grant sole parental responsibility to the father, where the children should live, and the nature and extent of any contact or communication between the children and the maternal grandmother. The court also had to consider injunctive relief to protect the children and the father.

Hartnett J ordered that the father have sole parental responsibility for the children and that they live with him. Crucially, the court ordered that the children have no time with, and no communication with, the maternal grandmother. To this end, the maternal grandmother and her agents were restrained by injunction from various actions, including contacting or approaching the children, attending their schools or medical appointments, attending the father's residence without consent, publishing material about the father or children online, and discussing the proceedings. The court also made orders restraining both parties from speaking derogatorily about each other or their family members in the children's presence. The appointment of an Independent Children's Lawyer was discharged, and all extant applications were dismissed.

Orders

Orders of the court

All previous parenting orders be discharged.

The father have sole parental responsibility for the children X born … 2006 and Y born … 2008 (‘the children’).

The children live with the father.

The children spend no time with, and have no communication with, the maternal grandmother.

The maternal grandmother and her agents or servants, be and are hereby restrained by injunction from:-

(a) contacting or approaching the children;

(b) locating, following, and/or keeping the children under surveillance;

(c) attending any school, venue for extra-curricular activities and/or venue for medical or allied health treatment, that the children may attend;

(d) attending the father’s residence without the written consent of the father;

(e) publishing on the internet, by email or other electronic communication any material about the father and/or the children, or any of them; and/or

(f) discussing these proceedings or any other proceedings relating to the children.

The parties are restrained from speaking in a derogatory manner about the other and their family members, either directly to the children or within the children’s hearing or allowing any other person to do so.

The appointment of the Independent Children’s Lawyer be discharged.

Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel.

All extant applications including the maternal grandmother’s Amended Initiating Application filed 4 May 2020 and the father’s Further Amended Response to Initiating Application filed 27 May 2020 be otherwise dismissed.

Notation:-

A. Pursuant to s65DA(2) and s62B of the Family Law Act 1975 (Cth) 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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