DRIVER & DOLMAN - [2017] FamCA 91

FAMILY COURT OF AUSTRALIA

DRIVER & DOLMAN

[2017] FamCA 91

FAMILY LAW – CHILDREN – With whom a child lives – Where maternal grandmother have sole parental responsibility – where children live with maternal grandmother – where maternal grandmother seeks no time spent with the father or paternal grandmother – Where paternal grandmother discontinued her Response – where the trial proceeded as an undefended hearing – where the father is convicted of murder of the mother – where presumption of section 61DA of the Family Law Act 1975 (Cth) does not apply given the father’s murder of the mother – where re-introducing the children to the paternal grandmother would be emotionally distressing

FAMILY LAW – CHILDREN – Aboriginal culture – Indigenous child-rearing practices – where the children’s aboriginality is derived from their paternal grandfather – where children’s opportunity to experience their aboriginal culture is minimised as a consequence of the mother’s murder, father’s incarceration and estrangement from paternal family

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61F, 65DAA(1), 65DAC

Donnell & Dovey [2010] FamCAFC 15
Mauldera & Orbel (2014) FLC 93-602
Re CP (1997) 21 FamLR 486
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT:

Ms Maddison

RESPONDENT:

Ms Dolman

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

657

2012

DATE DELIVERED:

24 February 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

2 February 2017

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

No appearance

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Susan Gray

Orders

All previous parenting Orders in relation to the children B born … 2003 and C born … 2006 (“the children”) be forthwith discharged.
The children live with the maternal grandmother Ms Maddison (“the maternal grandmother”).
The maternal grandmother have sole parental responsibility for the children including but not limited to:-
a.Any medical or health matter concerning the said children;
b.Matters relating to the education of the said children, including but not limited to, the choice of school and curriculum;
c.Disciplinary matters;
d.Matters concerning the social development and sporting activities of the said children;
e.The names of the said children;
f.Matters concerning the religion, faith or culture and custom of the children;
g.The place of residence of the children including any change thereof;
h.Any matter regarding the said children in respect of which a parent should be informed or consulted with having regards to the provision of part VII of the Family Law Act 1975.
The maternal grandmother is permitted to make application for passports for the children issue without the requirement of having the signature of their father Mr Dolman.
The Independent Children’s Lawyer be discharged with the thanks of the court.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment…

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 DRIVER & DOLMAN

Details

AGLC: DRIVER & DOLMAN [2017] FamCA 91
Case: [2017] FamCA 91
Decision Date: 24 February 2017

CaseChat Overview and Summary

In the matter of *Driver & Dolman*, heard by Tree J, the dispute concerned parenting orders for two children. The maternal grandmother sought sole parental responsibility and orders that the children have no time spent with the father or paternal grandmother. The paternal grandmother had discontinued her response, and the father had been convicted of the murder of the children's mother.

The court was required to determine the best interests of the children in circumstances where the presumption under section 61DA of the *Family Law Act 1975* (Cth) did not apply due to the father's conviction. The court also considered the children's Aboriginality, derived from their paternal grandfather, and the impact of the mother's murder, the father's incarceration, and estrangement from the paternal family on their opportunity to experience their culture. The maternal grandmother argued that re-introducing the children to the paternal grandmother would be emotionally distressing.

Tree J reasoned that the father's conviction for murder meant the presumption of equal parental responsibility did not apply. The court found that the children's best interests were served by the maternal grandmother having sole parental responsibility, given the traumatic circumstances and the potential for emotional distress if re-introduced to the paternal grandmother. The court acknowledged the children's Aboriginal heritage but noted that their opportunity to experience it was already significantly minimised due to the father's actions and absence.

The court ordered the discharge of all previous parenting orders. The children were to live with the maternal grandmother, who was granted sole parental responsibility for all aspects of their upbringing, including medical, educational, disciplinary, social, and cultural matters, as well as their place of residence. The maternal grandmother was permitted to apply for passports for the children without the father's signature. The Independent Children's Lawyer was discharged, and all other extant applications were dismissed.

Orders

Orders of the court

All previous parenting Orders in relation to the children B born … 2003 and C born … 2006 (“the children”) be forthwith discharged.

The children live with the maternal grandmother Ms Maddison (“the maternal grandmother”).

The maternal grandmother have sole parental responsibility for the children including but not limited to:-

a. Any medical or health matter concerning the said children;

b. Matters relating to the education of the said children, including but not limited to, the choice of school and curriculum;

c. Disciplinary matters;

d. Matters concerning the social development and sporting activities of the said children;

e. The names of the said children;

f. Matters concerning the religion, faith or culture and custom of the children;

g. The place of residence of the children including any change thereof;

h. Any matter regarding the said children in respect of which a parent should be informed or consulted with having regards to the provision of part VII of the Family Law Act 1975.

The maternal grandmother is permitted to make application for passports for the children issue without the requirement of having the signature of their father Mr Dolman.

The Independent Children’s Lawyer be discharged with the thanks of the court.

Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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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