DEACON & DEACON - [2019] FamCA 956

FAMILY COURT OF AUSTRALIA

DEACON & DEACON

[2019] FamCA 956

FAMILY LAW – JURISDICTION – Where the Court has jurisdiction by reason of the interplay between the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children and the provisions of the Family Law Act 1975 (Cth).

FAMILY LAW – CHILDREN – Interim Parenting – Best Interests – Where the mother seeks to live with the children in Australia whilst the father seeks that the children reside with him in the United States of America – Where the children have established relationships with both parents – Where the mother presents as the children’s primary carer both historically and at present – Where issues as to family violence such that the presumption as to equal shared parental responsibility should not apply – Where mother to have sole parental responsibility – Where consideration of applicable principles and the children’s best interests – Orders made for children to live with the mother in Australia – Orders fashioned to ensure the children have a meaningful relationship with the non-resident father – Orders to be registered in a competent court of the overseas jurisdiction to ensure their enforcement.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL, 69E, 70M, 111B, 111CA, 111CC, 111CD

Family Law Regulations 1984, Reg 14

Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Lao & Yeng [2018] FamCA 560
Marvel & Marvel [2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Sigley & Evor (2011) 44 Fam LR 439

APPLICANT:

Ms Deacon

RESPONDENT:

Mr Deacon

INDEPENDENT CHILDREN’S LAWYER:

Ms Hayward

FILE NUMBER:

DUC

303

2019

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

31 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Todd

SOLICITOR FOR THE APPLICANT:

Thompson Madden Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Schroder

SOLICITOR FOR THE RESPONDENT:

Gayle Meredith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders pending further order:

That the mother have sole parental responsibility for the children, X born … 2009 and Y born … 2011 (“the children”).
The mother, in the exercise of sole parental responsibility, consult the father in a timely manner prior to her making decisions in the exercise of parental responsibility including but not limited to issues as to:
(a)      The education of the children;
(b)      The religion of the children;
(c)      Major health decisions for the children;
(d)Any change in the children’s present living arrangements that may make it more significantly more difficult for the children…

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

AGLC: DEACON & DEACON [2019] FamCA 956
Case: [2019] FamCA 956
Decision Date: 12 December 2019

CaseChat Overview and Summary

The parties in this matter were the mother and the father, who disputed the residence of their children. The mother sought for the children to live with her in Australia, while the father sought for them to reside with him in the United States of America. The case came before Foster J of the Family Court of Australia.

The central legal issues before the court were whether it had jurisdiction to make parenting orders, given the interplay between the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children and the provisions of the *Family Law Act 1975* (Cth). Furthermore, the court was required to determine the interim parenting arrangements for the children, considering their best interests, including established relationships with both parents, the mother's historical and present role as primary carer, and allegations of family violence impacting the presumption of equal shared parental responsibility.

Foster J reasoned that the court possessed jurisdiction by virtue of the Hague Convention and the *Family Law Act*. Applying the principles of the *Family Law Act* and focusing on the children's best interests, the court found that the presumption of equal shared parental responsibility should not apply due to issues of family violence. Consequently, the mother was granted sole parental responsibility. The court made orders for the children to live with the mother in Australia, while also fashioning orders designed to ensure the children maintain a meaningful relationship with the non-resident father. These orders were to be registered in a competent court of the United States to facilitate their enforcement.

Orders