De Haven and De Haven and Ors - [2015] FamCA 581

FAMILY COURT OF AUSTRALIA

DE HAVEN & DE HAVEN & ORS

[2015] FamCA 581

FAMILY LAW – CHILDREN – Where the Applicant Father initially sought orders in relation to the two subject children as between himself and the Respondent Mother – Where the children currently live with the 1^st Intervener paternal grandparents pursuant to interim orders – Where the eldest child’s biological father is the 2^nd Intervener – Discussion of the legislative provisions in respect of who is a “parent” in these proceedings

FAMILY LAW – CHILDREN – Best Interests – Where the children’s relationships with the paternal grandparents are important and stabilising – Where the parties unanimously agreed the children should remain permanently resident with the paternal grandparents – Where both children enjoy loving relationships with the applicant – Where the applicant poses a risk of harm to the children by his subjection of them to physical abuse – Children to spend regular supervised time with the applicant for a defined period – Where the children have meaningful relationships with the mother – Where the mother has an impaired parenting capacity and possesses limited insight into the effect of her behaviour on the children – Where the mother poses a risk of harm to the children by her subjection of them to physical abuse – Children to spend graduating supervised time with the mother for a defined period – Where the eldest child has no relationship at all with his biological father – Where the eldest child’s best interests are served by the correction of his misunderstanding about his paternity – Eldest child to spend supervised time with his biological father three times per year – Where until the mother’s time with the children graduates to unsupervised time, the 3^rd Intervener maternal grandmother is restrained from spending time with the children

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply in respect of either child – Where the children’s best interests warrant the paternal grandparents having parental responsibility for them – Where it was agreed they should have equal shared parental responsibility.

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D

Aldridge & Keaton (2009) FLC 93-421
Maldera v Orbel [2014] FamCAFC 135
Marriage of B & B (1993) FLC 92-357
Valentine & Lacerra & Anor [2013] FamCAFC 53; (2013) 49 Fam LR 255

APPLICANT:

Mr De Haven

RESPONDENT:

Ms De Haven

1st INTERVENERS:

Mr B De Haven &

Ms C De Haven

2nd INTERVENER:

Mr D

3^rd INTERVENER:

Ms E

INDEPENDENT CHILDREN’S LAWYER:

Ms Blackman, Legal Aid NSW Gosford

FILE NUMBER:

NCC

1478

2014

DATE DELIVERED:

23 July 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

6, 7, 8 & 9 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sharrock

SOLICITOR FOR THE APPLICANT:

Ashby Family Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Allen

SOLICITOR…

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: [2015] FamCA 581
Decision Date: 23 July 2015

CaseChat Overview and Summary

This case concerned applications by the Applicant Father and the Respondent Mother regarding their two children, F and G. The children were residing with the First Interveners, the paternal grandparents, pursuant to interim orders. The Second Intervener was the biological father of the eldest child. The proceedings involved determining who qualified as a "parent" for the purposes of the Family Law Act 1975 (Cth) and the appropriate parenting arrangements for the children.

The court was required to determine the children's best interests, considering their relationships with the paternal grandparents, the Applicant Father, and the Respondent Mother. A key issue was the presumption of equal shared parental responsibility and whether it applied to either child, given the circumstances. The court also had to address the eldest child's relationship with his biological father and the implications for his understanding of paternity.

Austin J found that the presumption of equal shared parental responsibility did not apply. The court determined that the children's best interests were served by the paternal grandparents having parental responsibility and that they should live with them. The Applicant Father was to have supervised time with the children until the youngest commenced school, due to his history of physical abuse. The Respondent Mother, who also posed a risk of harm through physical abuse and had impaired parenting capacity, was to have graduating supervised time. The eldest child was to have supervised time with his biological father three times per year to address his misunderstanding about paternity. The maternal grandmother was restrained from spending time with the children until the mother's time graduated to unsupervised. The court also made orders restraining corporal punishment and denigration of parties, and requiring the amendment of the eldest child's birth certificate to reflect his paternity.

Orders

Orders of the court

Former orders discharged

All former orders relating to the children (collectively “the children”) F, born … 2011, (“the eldest child”) and G, born … 2012, (“the youngest child”) are discharged.

First Interveners and children

The First Interveners shall have equal shared parental responsibility for the children.

The children shall live with the First Interveners.

Applicant and children

Subject to Order 5 hereof, the First Interveners and Applicant shall each take all reasonable steps to ensure that the children spend time with the Applicant, unless otherwise agreed between them, each alternate Sunday from 10.00 am to 5.00 pm, commencing on the first Sunday following these orders.

The First Interveners and Applicant shall ensure that any time spent by the children with the Applicant pursuant to Order 4 hereof is supervised by the First Interveners, or either one of them, until the youngest child commences school.

Respondent and children

The First Interveners and Respondent shall each take all reasonable steps to ensure that the children spend time with the Respondent, unless otherwise agreed between them:

(a) Up to 31 December 2016, for three hours on the first Saturday of each calendar month, on the conditions set out in Order 7 hereof;

(b) Thereafter, until the youngest child commences school, for three hours each alternate Saturday, commencing on the second Saturday after the last visit pursuant to Order 6(a) hereof, on the conditions set out in Order 7 hereof; and

(c) Thereafter, each alternate Saturday from 10.00 am until 5.00 pm, commencing on the second Saturday after the last visit pursuant to Order 6(b) hereof.

For the purpose of implementing Orders 6(a) and 6(b) hereof:

(a) The supervisor of the time spent by the children with the Respondent shall be staff at “Phoenix Rising”, staff at “Relationships Australia”, or some other person or entity nominated by the staff of Relationships Australia, in that order of priority (“the supervisor”).

(b) The First Interveners and Respondent shall each forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

(c) The time that is to be spent by the children with the Respondent shall commence at the time designated by the supervisor.

(d) The venue at which the time is to be spent by the children with the Respondent shall be designated by the supervisor.

(e) The Respondent shall pay any costs due to the supervisor for supervision of the children with her.

(f) The First Interveners shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the Respondent.

(g) The First Interveners and Respondent shall each comply with all reasonable requests and directions of the supervisor.

(h) The Respondent is restrained from causing or permitting any other person, including the maternal grandmother, from attending the supervised visits in her company.

(i) If the Respondent fails to attend two consecutive sessions at which the children were due to spend time with her pursuant to Order 6(a) hereof, then Order 6 hereof is suspended.

The First Interveners and the Respondent shall take all reasonable steps to ensure that the children are able to communicate with the Respondent in the following manner:

(a) By the Respondent being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays, Mother’s Day, and Christmas Day, and

(b) By the First Interveners promptly sending to the Respondent:

(i) Written acknowledgement of receipt of the Respondent’s written communication, and

(ii) Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the Respondent.

Second Intervener and eldest child

The First Interveners and the Second Intervener shall each take all reasonable steps to ensure that the eldest child spends supervised time with the Second Intervener, unless otherwise agreed between them, for three hours on the last Saturday of January, May and September each year, but if any such visit would conflict with time spent by the children with the Respondent pursuant to Orders 6(b) or 6(c) hereof, the time to be spent by the eldest child with the Second Intervener pursuant to this Order shall occur on the next Saturday thereafter.

10.

For the purpose of implementing Order 9 hereof:

(a) The supervisor of the time spent by the eldest child with the Second Intervener shall be staff at “Relationships Australia”, or alternatively, some other person or entity nominated by the staff of that organisation (“the supervisor”).

(b) The First Interveners and Second Intervener shall each forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

(c) The time that is to be spent by the eldest child with the Second Intervener shall commence at the time designated by the supervisor.

(d) The venue at which the time is to be spent by the eldest child with the Second Intervener shall be designated by the supervisor.

(e) The Second Intervener shall pay any costs due to the supervisor for supervision of the eldest child with him.

(f) The First Interveners shall cause the delivery of the eldest child to, and the collection of the eldest child from, the supervisor at the commencement and conclusion of the time spent by the eldest child with the Second Intervener.

(g) The First Interveners and Second Intervener shall each comply with all reasonable requests and directions of the supervisor.

(h) If the Second Intervener fails to attend two consecutive sessions at which the eldest child was due to spend time with him, then Order 9 is suspended.

11.

The First Interveners and the Second Intervener shall take all reasonable steps to ensure that the eldest child is able to communicate with the Second Intervener in the following manner:

(a) By the Second Intervener being able to send letters, cards, and/or gifts to the eldest child on or about dates proximate to the child’s birthday, Father’s Day, and Christmas Day, and

(b) By the First Interveners promptly sending to the Second Intervener:

(i) Written acknowledgement of receipt of the Second Intervener’s written communication, and

(ii) Any letters, cards, photographs, or other written communication that the eldest child wishes to be conveyed to the Second Intervener.

Miscellaneous orders

12.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

13.

Each party is restrained from denigrating any other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any other party.

14.

The First Interveners shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the Second Intervener’s paternity of the eldest child, and that a fresh birth certificate issues for the eldest child disclosing the Second Intervener’s paternity of the child.

15.

The First Interveners shall authorise and request the principal of any school attended by either child to provide to the Applicant, Respondent, and Second Intervener, at the respective expense of those parties, copies of all school reports and school photograph order forms relating to the children.

16.

Leave is granted to the parties to provide a sealed copy of these orders to:

(a) The supervisor of the time spent by the children, or eldest child, with the Respondent and Second Intervener;

(b) The Registrar appointed under the Births, Deaths, and Marriages Registration Act 1995 (NSW);

(d) The provider of any counselling or other medical service to either child.

17.

The First Interveners shall forthwith inform the other parties, and keep the other parties informed, in writing, of their current residential address, mobile telephone numbers, and email address.

18.

The Applicant, Respondent, and Second Intervener shall each forthwith inform the First Interveners, and keep them informed, in writing, of their respective current residential addresses, mobile telephone numbers, and email addresses.

19.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21.

Any and all outstanding applications are dismissed.

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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