Christiansen and Hawk and Ors - [2018] FCCA 3037

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHRISTIANSEN & HAWK & ORS

[2018] FCCA 3037

Catchwords:
FAMILY LAW – Parenting – risk of harm – significant family and domestic violence – children to live with maternal grandparents – no time with mother or father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA, 65DAC

Cases cited:

Banks & Banks [2015] FamCAFC 36
Blythe & Blythe [2018] FCCA 66
Bondelmonte & Bondelmonte & Anor [2017] HCA 8
Boyle & Zahur & Anor (No.2) [2017] FamCAFC 263
CDJ v VAJ (1998) FLC 92 - 828
Donnell & Dovey [2010] FamCAFC 15
Goode & Goode (2007) 36 Fam LR 422
Howard & Howard [2016] FamCA 455
Johnson & Page (2007) FamCA 1235
Jopson & Lilwal (No.2) [2016] FamCAFC 262
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Richards & Brown [2011] FamCA 662
Starr & Duggan [2009] FamCAFC 115

Applicant:

MS CHRISTIANSEN

First Respondent:

MS HAWK

Second Respondent:

MR JARVIS

Third Respondent:

MR SMITH

File Number:

PAC 4680 of 2016

Judgment of:

Judge Obradovic

Hearing dates:

5, 6 and 7 February 2018

Date of Last Submission:

7 February 2018

Delivered at:

Parramatta

Delivered on:

2 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms Mahony

Counsel for the First Respondent:

Mr Blank

Solicitors for the First Respondent:	Voros Lawyers
Appearing for the First Respondent:	No appearance
Appearing for the Second Respondent: Appearing for the Independent Children's Lawyer:	No appearance Ms Morton
Solicitors for the Independent Children's Lawyer:	Morton Family Lawyers

ORDERS

The maternal grandmother, Ms Christiansen, born 1970 shall have sole parental responsibility for the children [X] born 2010 and [Y] born 2016.
The children shall live with the maternal grandmother.
The children shall spend no time with the First Respondent, Second Respondent and/or the Third Respondent.
Pursuant to section 68B of the Family Law Act 1975, Ms Hawk and Mr Smith shall be restrained from:
(a)Entering upon or approaching within 100 metres of the maternal grandmother’s place of residence;
(b)Entering upon or approaching within 100 metres of the maternal grandmother’s place of work;
(c)Entering any school where the children attend including the maternal grandmother’s children;
(d)Assaulting, intimidating, stalking, molesting, harassing, threatening, or otherwise interfering with the maternal grandmother or the children; and/or
(e)Contacting the maternal grandmother through any electronic means including social media.
Remove all outstanding issues from the list of cases awaiting finalisation

IT IS NOTED that publication of this judgment under the pseudonym Christiansen & Hawk & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4680 of 2016

MS CHRISTIANSEN

Applicant

And

MS HAWK

First Respondent

MR JARVIS

Second Respondent

MR SMITH

Third Respondent

REASONS FOR JUDGMENT

Introduction

[X] born 2010 and [Y] born 2016 are half brother and sister. Since shortly after [Y]’s birth, they have been living with the Applicant who is their maternal grandmother.
The Applicant brings proceedings seeking orders on a final basis for the children to live with her, that…

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: [2018] FCCA 3037
Decision Date: 2 November 2018

CaseChat Overview and Summary

In the matter of *Christiansen and Hawk and Ors*, heard before Judge Obradovic, the dispute concerned the parental responsibility and living arrangements for two children, [X] and [Y]. The application was brought by the maternal grandmother, Ms Christiansen, seeking orders for sole parental responsibility and that the children live with her. The respondents were identified as Ms Hawk and Mr Smith, and a third respondent.

The court was required to determine the best interests of the children in light of the circumstances presented. Specifically, the court had to consider whether to grant the maternal grandmother sole parental responsibility, make orders for the children to live with her, and whether to make orders for the children to spend time with the respondents. Furthermore, the court considered the need for protective orders to ensure the safety and well-being of the maternal grandmother and the children.

Applying the principles of the *Family Law Act 1975*, particularly section 68B, Judge Obradovic made orders granting the maternal grandmother sole parental responsibility for the children and that they live with her. Crucially, the court ordered that the children spend no time with the First, Second, and Third Respondents. In addition, pursuant to section 68B of the *Family Law Act 1975*, Ms Hawk and Mr Smith were restrained from approaching within 100 metres of the maternal grandmother’s residence or place of work, entering any school attended by the children, and were prohibited from assaulting, intimidating, stalking, molesting, harassing, threatening, or otherwise interfering with the maternal grandmother or the children, including through electronic means. All outstanding issues were removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The maternal grandmother, Ms Christiansen, born 1970 shall have sole parental responsibility for the children [X] born 2010 and [Y] born 2016.

The children shall live with the maternal grandmother.

The children shall spend no time with the First Respondent, Second Respondent and/or the Third Respondent.

Pursuant to section 68B of the Family Law Act 1975, Ms Hawk and Mr Smith shall be restrained from:

(a) Entering upon or approaching within 100 metres of the maternal grandmother’s place of residence;

(b) Entering upon or approaching within 100 metres of the maternal grandmother’s place of work;

(d) Assaulting, intimidating, stalking, molesting, harassing, threatening, or otherwise interfering with the maternal grandmother or the children; and/or

(e) Contacting the maternal grandmother through any electronic means including social media.

Remove all outstanding issues from the list of cases awaiting finalisation

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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