Dundas and Duffy and Ors - [2017] FCCA 1928

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUNDAS & DUFFY & ORS

[2017] FCCA 1928

Catchwords:

FAMILY LAW – Children – Parenting arrangements – competing applications by maternal and paternal grandmothers for “ live with” orders – child 6 years old – maternal family identified as Aboriginal – mother did not participate in proceedings – father deceased – application of sections 60B(2)(e), 60CC(3)(h), 60CC(6) and 61F of the Family Law Act 1975 – both grandmothers seeking sole parental responsibility – health and safety concerns and risk to the child being exposed to criminal activity in the maternal family’s home – orders for child to live with the paternal grandmother and spend time with maternal grandmother.

Legislation:

Family Law Act 1975, ss.60B (1), 60B(2), 60B(2)(e), 60B(e), 60CA, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(h), 60CC(3)(m), 60CC(6), 61C(1), 61C(3)(1), 61D(1), 61F, 65D(1), 65DAA

Evidence Act 1995, s.144
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Cases cited:

Davis & Davis (2007) 38 Fam LR 671; [2007] FamCA 1149

Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15
Sheldon & Weir (No 3) [2010] FamCA 1138
Hort & Verran (2009) FLC 93-418; [2009] FamCAFC 214
Aldridge & Keaton (2009) FLC 93-42; [2009] FamCAFC 229
B & F [1998] FamCA 239
Backford & Backford and Anor [2017] FamCAFC 1
Dukes and Anor & Talford [2017] FamCA 63
Burton & Churchin and Anor (2013) FLC 93-56; [2013] FamCAFC 180

Articles referred to:
‘Indigenous Australians & Family Law Litigation: Indigenous Perspectives on Access to Justice’ (2011)
‘The Best Interests of the Aboriginal Child in Family Law Proceedings’ (1998) 12 AJFL 140

Applicant:

MS DUNDAS

First Respondent:

MS DUFFY

Second Respondent:

MS MORROW

Third Respondent:

MS BINKS

File Number:

AYC 60 of 2015

Judgment of:

Judge Tonkin

Hearing dates:

24 & 25 May 2017

Date of Last Submission:

25 May 2017

Delivered at:

Canberra

Delivered on:

16 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Stagg

Solicitors for the Applicant:

Friedlieb Byrne

Counsel for the Third Respondent:

Ms Irving

Solicitors for the Third Respondent:

Elringtons

Counsel for the Independent Children's Lawyer:

Mr Haddock

Solicitors for the Independent Children's Lawyer:

No appearance by or on behalf of the First Respondent

No appearance by or on behalf of the Second Respondent

Legal Aid ACT

ORDERS

All previous Orders are hereby discharged.
Subject to Orders 3 to 5 hereof, the paternal grandmother shall have sole parental responsibility for the child X born (omitted) 2011 (“the child”).
Notwithstanding Order 2 and subject to Order 5 hereof, the paternal grandmother shall consult the maternal grandmother with respect to the following matters:
(a)Any proposed change in the child’s schooling including but not limited to whether the child should change schools, repeat a grade and/or where and when the child should commence High School; and
(b)Any medical and dental issues including but not limited to whether the child needs any significant medical and/or surgical and/or dental procedure or treatment (for example whether the child requires surgery, long term treatment for a serious medical condition, requires…

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: [2017] FCCA 1928
Decision Date: 16 August 2017

CaseChat Overview and Summary

This case concerned competing applications by the maternal grandmother and the paternal grandmother for "live with" orders concerning a six-year-old child. The maternal family identified as Aboriginal, and the mother did not participate in the proceedings, while the father was deceased. The paternal grandmother raised concerns about health and safety and the risk of the child being exposed to criminal activity within the maternal family's home.

The court was required to determine the best interests of the child in light of the applications and the evidence presented, including the application of sections 60B(2)(e), 60CC(3)(h), 60CC(6), and 61F of the Family Law Act 1975. Both grandmothers sought sole parental responsibility for the child.

The court reasoned that while the child's Aboriginal identity was a significant consideration, the paramount consideration was the child's safety and well-being. The court found that there were health and safety concerns and a risk of exposure to criminal activity in the maternal family's home, which weighed against the maternal grandmother's application for sole parental responsibility. The court ultimately ordered that the paternal grandmother have sole parental responsibility for the child, with specific provisions for consultation with the maternal grandmother on significant decisions regarding schooling, medical and dental issues, and other major decisions. The maternal grandmother was given sole responsibility for maintaining the child's Aboriginal identity, with consultation required from the paternal grandmother. The child was ordered to live with the paternal grandmother and spend time with the maternal grandmother, with detailed provisions for this time, including supervised time with the mother and aunt. Injunctions were also made restraining the use of illicit substances in the child's presence and prohibiting denigration of other parties.

Orders

Orders of the court

All previous Orders are hereby discharged.

Subject to Orders 3 to 5 hereof, the paternal grandmother shall have sole parental responsibility for the child X born (omitted) 2011 (“the child”).

Notwithstanding Order 2 and subject to Order 5 hereof, the paternal grandmother shall consult the maternal grandmother with respect to the following matters:

(a) Any proposed change in the child’s schooling including but not limited to whether the child should change schools, repeat a grade and/or where and when the child should commence High School; and

(b) Any medical and dental issues including but not limited to whether the child needs any significant medical and/or surgical and/or dental procedure or treatment (for example whether the child requires surgery, long term treatment for a serious medical condition, requires braces or similar); and

The paternal and maternal grandmothers shall use their best endeavours to discuss the matters referred to in Order 3 and in the event that they are unable to reach an agreement, the paternal grandmother’s decision in relation to an issue shall be determinative.

The maternal grandmother shall have sole responsibility for ensuring that the child’s Aboriginal identity is maintained in the manner the maternal grandmother considers appropriate including ensuring the child engages in any activities and practices which involve the Aboriginal culture and Aboriginal community. To give effect to this order the maternal grandmother shall consult the paternal grandmother regarding these issues however the maternal grandmother’s decisions about the child’s participation in her Aboriginal culture and community shall be determinative.

The child shall live with the paternal grandmother.

Unless otherwise agreed, the child shall spend time with the maternal grandmother as follows:

(a) Commencing 17 August 2017 during the school terms each alternate week from Thursday after school until before school on Monday; and

(b) During the New South Wales gazetted Term 1, Term 2 and Term 3 school holidays from 5:00pm on the Saturday falling on the second weekend of the holidays to 5:00pm the following Saturday; and

(c) During the New South Wales gazetted Christmas school holiday periods for half the school holidays as agreed between the parties but failing agreement:-

(i) During years ending in an even number commencing 2018:

(A) From 5:00pm on the first Saturday falling in the school holiday period to 5:00pm the following Saturday; and

(B) From 5:00pm on the third Saturday falling in the school holiday period to 5:00pm the following Saturday; and

(D) Such other time as may be agreed between the parties.

(ii) During years ending in an even number commencing 2017:

(A) From 5:00pm on the second Saturday falling in the school holiday period to 5:00pm the following Saturday; and

(B) From 5.00pm on the fourth Saturday falling in the school holiday period to 5:00pm the following Saturday; and

(D) Such other time as may be agreed between the parties.

Changeover for the purposes of these Orders shall occur at the child’s school or at such other location as agreed between the parties but failing agreement at the entrance to Coles at (omitted).

Notwithstanding these orders:

(a) The child shall spend time with the maternal grandmother in even numbered years from 2:00pm Christmas Eve until 2:00pm Christmas Day and with her paternal grandmother from 2:00pm Christmas Day until 2:00pm Boxing Day; and

(b) The child shall spend time with the paternal grandmother in odd numbered years from 2:00pm Christmas Eve until 2:00pm Christmas Day and with her maternal grandmother from 2:00pm Christmas Day until 2:00pm Boxing Day.

10.

The child shall spend time with her mother Ms Duffy supervised by the maternal grandmother and she shall spend time with her aunt Ms Morrow supervised by the maternal grandmother.

11.

The child shall communicate with the maternal grandmother by telephone during school term every Tuesday from 6:00pm to 6:30pm with the maternal grandmother to initiate the call and the paternal grandmother to facilitate the call.

12.

Should the child request to communicate with the maternal grandmother or her partner, her maternal aunt or her mother at any other time, the paternal grandmother shall facilitate that communication.

13.

Each party shall keep the other informed of their current residential address, mobile telephone numbers and any available email addresses and advise the other party of any change thereto within 24 hours of such change occurring.

14.

The paternal grandmother and maternal grandmother shall advise each other within 48 hours of any medical or dental appointments which the child is due to attend and advise each other of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give information in relation to the child to each of them.

15.

In the event that the child suffers a childhood illness or in the event of an emergency the party with whom the child is with shall contact the other party forthwith to inform them.

16.

Each of the parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating any other party.

17.

The paternal grandmother and the maternal grandmother each be permitted to liaise directly with the child's school and to receive notices, information, newsletters, reports, photographs and any other necessary information about the child's progress.

18.

The paternal grandmother and other members of the paternal family and the maternal grandmother and other members of the maternal family be at liberty to attend at the child's school for the purposes of any function or activity normally attended by parents.

19.

The first, second and third respondent be and are hereby restrained from using any illicit substance whilst the child is in their care or permitting any other person in the household to use an illicit substance while the child is in their care.

NOTATION:

A. The parties agree that X will continue to attend (omitted) Public School with her siblings A and B.

B. The parties agree that X will attend upon a G.P. at the Aboriginal Medical Centre.

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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