FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dendy & Penta [2024] FedCFamC2F 1116
File number(s): LNC 315 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – PARENTING – Res tempore Reasons – Travel to Region C – Child of Aboriginal descent – Whether the child travelling to Region C poses an unacceptable risk – Connection to Aboriginal heritage and culture – Cultural practices. Legislation: Family Law Act 1975 (Cth) s 68B, Part 7 Cases cited: B & F [1998] FamCA 239
B & R [1995] FLC 92-368
Davis & Davis and Anor (2008) 38 Fam LR 671
Davis & Spring [2007] FamCA 1149
Davis & Davis [2007] FamCA 1149
Donnell & Dovey [2010] FamCAFC 15
Gareth v Naylor [2019] FamCA 561
Hort & Verran [2009] FamCAFC 214
MR & GR [2010] 240 CLR 461
Sheldon & Weir (2011) FamCAFC 212
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 19 March 2024 Place: City J Counsel for the First Applicant: Appearing in person Counsel for the Second Applicant: Appearing in person Counsel for the First Respondent: Ms Lawrence Solicitor for the First Respondent: Bishops Barristers & Solicitor Counsel for the Second Respondent: Appearing in person Counsel for the Independent Children's Lawyer: Ms Hunt Solicitor for the Independent Children's Lawyer: Legal Aid Commission ORDERS
LNC 315 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DENDY
First Applicant
MR DENDY
Second Applicant
AND: MS PENTA
First Respondent
MR B DENDY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1.X born in 2017 ("X") be permitted to travel with MR B DENDY ("the Father"), MR DENDY ("the Paternal Great Grandfather") and/or MS DENDY ("the Paternal Grandmother") to Region C, State H twice per year as follows:
(a)For up to four (4) nights during the summer months (January/February);
(b)For up to seven (7) nights and during the annual hunting season noting this is to coincide either during or as close to the school holiday period as possible; and
(c)At other such times as agreed by the parties.
2.During all trips to Region C, X is to be accompanied by the Paternal Grandmother who will ensure X is supervised at all reasonable times and shall do so until he attains the age of eight (8) years.
3.X not be permitted to engage in any commercial hunting practices on an employed basis until he attains the age of twelve (12) years or older.
4.The Father, the Paternal Grandmother and/or the Paternal Great Grandfather provide MS PENTA ("the Mother") 14 days' notice of the intended travel dates to Region C and 3 days written notice of the specific travel dates (noting times may vary due to weather and flight conditions) and upon receiving such notice the Mother is to facilitate said travel.
5.Either the father, the paternal grandmother and/or the paternal Great Grandfather shall be responsible for the…
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CaseChat Overview and Summary
The court examined the evidence presented regarding the nature of the travel, the safety measures in place, and the cultural importance of the trips. It was crucial to determine if the potential risks, such as exposure to unsafe environments or activities, outweighed the benefits of the child's cultural connection. The court also considered the supervision arrangements and the commitment of the paternal relatives to ensure the child's safety during the trips.
After carefully reviewing the evidence and arguments from both parties, the court concluded that the proposed travel to Region C was in the best interest of the child, provided certain conditions were met. The court ordered that the child be permitted to travel to Region C twice a year, with specific supervision and safety measures in place. The court also required the paternal relatives to provide detailed notice of the travel plans to the child's mother and ensure that the child was not exposed to harmful activities or environments. Additionally, the court emphasised the importance of the child's connection to his Aboriginal heritage and culture in its reasoning.
The final orders of the court included provisions for the child's travel under supervised conditions, the provision of safety items, and the prohibition of certain activities until the child reached a certain age. The court also addressed the responsibilities of the paternal relatives in ensuring the child's safety and well-being during the trips. The court's decision balanced the child's right to cultural connection with the need to protect him from potential risks.
Orders
Orders of the court
LNC 315 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS DENDY
First Applicant
MR DENDY
Second Applicant
AND:
MS PENTA
First Respondent
MR B DENDY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1. X born in 2017 ("X") be permitted to travel with MR B DENDY ("the Father"), MR DENDY ("the Paternal Great Grandfather") and/or MS DENDY ("the Paternal Grandmother") to Region C, State H twice per year as follows:
(a) For up to four (4) nights during the summer months (January/February);
(b) For up to seven (7) nights and during the annual hunting season noting this is to coincide either during or as close to the school holiday period as possible; and
(c) At other such times as agreed by the parties.
2. During all trips to Region C, X is to be accompanied by the Paternal Grandmother who will ensure X is supervised at all reasonable times and shall do so until he attains the age of eight (8) years.
3. X not be permitted to engage in any commercial hunting practices on an employed basis until he attains the age of twelve (12) years or older.
4. The Father, the Paternal Grandmother and/or the Paternal Great Grandfather provide MS PENTA ("the Mother") 14 days' notice of the intended travel dates to Region C and 3 days written notice of the specific travel dates (noting times may vary due to weather and flight conditions) and upon receiving such notice the Mother is to facilitate said travel.
5. Either the father, the paternal grandmother and/or the paternal Great Grandfather shall be responsible for the costs of the child's return flights to Region C.
6. The Father, the Paternal Grandmother and/or the Paternal Great Grandfather will ensure that appropriate safety items are provided for X such as helmets, lifejackets and any other necessary and appropriate safety items.
7. The Father, the Paternal Grandmother and the Paternal Great Grandfather ensure that X is not exposed to any third parties using illicit substances or drinking alcohol to excess whilst on Region C.
8. Pursuant to section 68B of the Family Law Act 1975 (Cth) the Applicant Paternal Great Grandfather is restrained from providing any direction to the Applicant Paternal Grandmother or to any other person supervising X from undertaking any work or other activity that would distract them from their obligation to supervise X pursuant to Order 2 of these Orders.
9. Save for these Orders and the Final Orders made 4 March 2024, that all extant parenting Orders are discharged.
10. All extant proceedings are dismissed.
THE COURT NOTES THAT:
A. Nothing set out in these Orders is intended to preclude the Mother from travelling to Region C with X.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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