DUNST & DUNST - [2014] FamCA 964

FAMILY COURT OF AUSTRALIA

DUNST & DUNST

[2014] FamCA 964

FAMILY LAW – CHILDREN – Best interests – Where the mother and the five subject children are in hiding – Where the father poses an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence – Where the father poses the same risk to the mother and there is a current apprehended violence order in place protecting her – Where there is no safe alternative but to eliminate all personal contact between the father and the children and only preserve a line of communication between them – Children to live with the mother – Whether any of the children spend time with the father shall be determined by the mother as an incident of her sole parental responsibility for the children – Where the father is able to occasionally send letters, cards, and/or gifts to the children.

FAMILY LAW – CHILDREN – Parental responsibility – The presumption of equal shared parental responsibility does not apply because of the father’s commission of family violence – Where there is no feasible option but to allocate parental responsibility exclusively to the mother.

FAMILY LAW – PRACTICE & PROCEDURE – Where there were two outstanding interlocutory applications to be determined – Where the father sought the preparation of a supplementary single expert report following his observation in the company of the children – Where the father also sought to adduce adversarial expert evidence from a psychiatrist he consulted – Both applications dismissed.

Australian Passports Act 2005 (Cth) s 11
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 36, 38, 42
Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B, 68P, 102PE, 102PF
Family Law Rules 2004 (Cth) rules 15.41, 15.49, 15.52, 15.64B, 16.65

Chapman v Palmer (1978) 4 Fam LR
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
M v B [2001] FamCA 894
M v M (1988) 166 CLR 69
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
Marriage of Sedgley (1995) 19 Fam LR 363
MRR v GR (2010) 240 CLR 461
Pavli v Beffa (2013) 48 Fam LR 677
Re Andrew (1996) 20 Fam LR 538
Re W and W: Abuse Allegations; Expert Evidence (2001) 28 Fam LR 45
U v U (2002) 211 CLR 238

APPLICANT:

Ms Dunst

RESPONDENT:

Mr Dunst

FILE NUMBER:

NCC

1405

2012

DATE DELIVERED:

11 November 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

28, 29 & 30 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Hannaway Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gilbert

SOLICITOR FOR THE RESPONDENT:

KD Holmes Solicitors

Orders

All former parenting orders relating to the following children (“the children”) are discharged:
(a) Y Dunst, born … 1997;
(b)…

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: DUNST & DUNST [2014] FamCA 964
Case: [2014] FamCA 964
Decision Date: 11 November 2014

CaseChat Overview and Summary

This case concerned parenting orders for five children, Y, A, L, N, and B Dunst. The mother and the children were in hiding due to the father posing an unacceptable risk of physical and psychological harm to them, as well as to the mother, against whom an apprehended violence order was in place. The court was required to determine the children's living arrangements and parental responsibility, and to address two interlocutory applications made by the father.

The primary legal issues before the court were whether the presumption of equal shared parental responsibility applied, given the father's commission of family violence, and how to best ensure the children's safety and well-being in light of the risks posed by the father. The court also had to consider the father's applications for a supplementary expert report and to adduce adversarial expert evidence.

Austin J found that the presumption of equal shared parental responsibility did not apply due to the father's family violence. The court reasoned that the father posed an unacceptable risk of harm to the children and that there was no safe alternative but to eliminate all personal contact between the father and the children, preserving only a line of communication. Consequently, the court ordered that the children live with the mother and that she have sole parental responsibility. The father was restrained from approaching the mother or the children's residences and schools, and was prohibited from obtaining information that could reveal their locality. Communication was to be limited to the father sending letters, cards, and gifts, and the mother facilitating the children's written communication to the father. The father's interlocutory applications were dismissed.

Orders

Orders of the court

All former parenting orders relating to the following children (“the children”) are discharged:

(a) Y Dunst, born … 1997;

(b) A Dunst, born … 1999;

(d) N Dunst, born … 2006; and

(e) B Dunst, born … 2008.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Pursuant to ss 102PE and 102PF(1)(c) of the Family Law Act, this suppression order prohibits the publication or other disclosure of any information which tends to reveal or identify the locality of the residence of the mother and the children until the youngest child attains her majority.

Pursuant to s 68B of the Family Law Act, the father is restrained from procuring any information, or copies of any document, from the Court’s manual or electronic file (NCC 1405/2012) that tends to disclose the locality of the residence of the mother and the children.

Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 500 metres of:

(a) The mother’s residence;

(b) The post office box or postal address obtained by the mother pursuant to Order 8(a) hereof; and

Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

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

(b) By the mother sending to the father:

(i) Written acknowledgement of receipt of the father’s written communication; and

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

For the purposes of implementation of Order 7 hereof:

(a) The mother shall, within 14 days hereof, obtain and thereafter retain a post office box or postal address to which the father may send written communication;

(b) The mother shall, within a further 7 days, notify the father of the post office box or postal address by sending written notification to the solicitors who acted for the father at the final hearing; and

(c) The father shall thereafter keep the mother informed in writing of the address to which mail directed by her to him may be sent.

By reason of a potential inconsistency between Orders 7 and 8 hereof and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

(a) The Registrar of the Local Court of NSW …;

(b) The Commissioner of the NSW Police Service; and

10.

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.

11.

Any and all outstanding applications are dismissed.

Notations

(A) No orders are made prescribing or precluding the children’s interaction with the father. Whether any of the children spend time or communicate with the father, and the circumstances under which they may do so, shall be determined by the mother as an incident of her sole parental responsibility for the children.

(B) If the Apprehended Violence Order made against the father for the protection of the mother by the Local Court of NSW … on 9 May 2014 for a period of two years was intended to also protect the parties’ children (as persons who have a domestic relationship with the mother), then Orders 7 and 8 hereof are inconsistent with that Order and, to the extent of any inconsistency, Division 11 of Part VII of the Family Law Act applies and these parenting orders prevail.

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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