Eliasco and Eliasco - [2014] FamCA 1157

FAMILY COURT OF AUSTRALIA

ELIASCO & ELIASCO

[2014] FamCA 1157

FAMILY LAW – CHILDREN – Undefended proceedings where mother elects not to participate in the proceedings – Where biological father of the eldest child with knowledge of the proceedings fails to participate – Where significant protective concerns in relation to the mother – Where biological father of the older child has little or no relationship with that child – Where it is appropriate to make orders finalising parenting proceedings – Consideration of the best interests of the children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN

Jarrah & Fadel [2014] FamCAFC 14
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405

APPLICANT:

Mr Eliasco

RESPONDENT:

Ms Eliasco

INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

FILE NUMBER:

PAC

607

2014

DATE DELIVERED:

19 December 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kenny

SOLICITOR FOR THE APPLICANT:

Everett Cs Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

Orders

That all previous parenting orders be discharged.
That the applicant father have sole parental responsibility for the children B born on … 2008 and C born on … 2010.
That the children live with the applicant father.
The father and mother must:
(a)       Contact the Suburb D Children’s Contact Centre (“the Contact Centre”) within 28 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the mother;
(b)       Attend the assessment;
(c)       Comply with any appointments made by the Contact Centre for supervised time;
(d)       Comply with all reasonable policies and rules of the Contact Centre; and
(e)       Comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 6 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the mother is to have contact with the children each fortnight at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.
The father must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 6, then, contact shall occur at the times that are offered by…

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 Eliasco and Eliasco

Details

AGLC: Eliasco and Eliasco [2014] FamCA 1157
Case: [2014] FamCA 1157
Decision Date: 19 December 2014

CaseChat Overview and Summary

In *Eliasco and Eliasco*, Foster J of the Federal Circuit Court of Australia made orders concerning the parenting of two children, B and C. The dispute involved the father seeking sole parental responsibility and the children to live with him, while the mother's contact with the children was significantly restricted and required supervision. The court also made orders regarding the contact arrangements for a Mr E with child B.

The primary legal issues before the court were the determination of the children's best interests in relation to their living arrangements and the nature and extent of contact between the children and their parents, as well as with Mr E. The court was required to consider the safety and well-being of the children and to make orders that would facilitate a stable and supportive environment for them.

Foster J discharged all previous parenting orders and granted the father sole parental responsibility for both children, ordering that they live with him. The mother's contact with the children was to be supervised by a children's contact centre, following an assessment of suitability. The court also made detailed provisions for the supervision of contact between child B and Mr E, including requirements for both parties to attend assessments and comply with the contact centre's policies. Further orders addressed communication between parents, travel arrangements for the children, and the involvement of therapeutic services for the father and child B. The Independent Children's Lawyer's appointment was continued for six months.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the applicant father have sole parental responsibility for the children B born on … 2008 and C born on … 2010.

That the children live with the applicant father.

The father and mother must:

(a) Contact the Suburb D Children’s Contact Centre (“the Contact Centre”) within 28 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the mother;

(b) Attend the assessment;

(d) Comply with all reasonable policies and rules of the Contact Centre; and

(e) Comply with all reasonable requests or directions of the staff of the Contact Centre.

If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 6 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.

If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the mother is to have contact with the children each fortnight at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

The father must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 6, then, contact shall occur at the times that are offered by the Contact Centre.

The father and mother or either of them are to attend and undertake and/or course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.

10.

The time the children spend with the mother under order 6 is to be supervised by the Contact Centre and the mother must pay the reasonable fees for the supervision on each occasion of supervision.

11.

The mother must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.

12.

If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.

13.

If during the currency of these orders the parties and the children’s representative agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

14.

The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

15.

That the mother be restrained from approaching, contacting or spending time with the children at their schools.

16.

The father and Mr E must:

(b) Attend the assessment;

(d) Comply with all reasonable policies and rules of the Contact Centre; and

(e) Comply with all reasonable requests or directions of the staff of the Contact Centre.

17.

If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 18 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.

18.

If after assessment the parties are accepted by the Contact Centre as suitable for supervised time Mr E is to have contact with the child B not more than once every two months at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

19.

The father must deliver the child B to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

20.

In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 18, then, contact shall occur at the times that are offered by the Contact Centre.

21.

The father and Mr E or either of them are to attend and undertake and/or course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.

22.

The time the child B spends with Mr E under order 18 is to be supervised by the Contact Centre and Mr E must pay the reasonable fees for the supervision on each occasion of supervision.

23.

Mr E must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.

24.

25.

If during the currency of these orders the parties and the independent children’s lawyer agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

26.

27.

That the Independent Children’s Lawyer forward a sealed copy of these orders by ordinary pre-paid post Mr E at F Street, G Town, NSW… within 7 days of receiving same from the court.

28.

That the appointment of the independent children’s lawyer shall continue for a period of 6 months from the date of orders and thereupon be discharged.

29.

That each parent be restrained from discussing these proceedings with the children including but not limited to any child protection issues that have been raised during the course of proceedings by any person in relation either parent or any other person,

30.

The father is authorised and permitted to apply for and receive an Australian passport for the children B born … 2008 and C born … 2010 without first obtaining the consent of the mother or Mr E, the biological father of the child B.

31.

The father is authorised and permitted to travel internationally with the children.

32.

That mother and father shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number.

33.

That each parent be permitted to communicate directly with the children’s schools, sporting bodies and medical practitioners to obtain any necessary information and all documents about the children’s progress and this order shall constitute sufficient authority for such communication.

34.

That both parents keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.

35.

That the children communicate with both parents by telephone at any reasonable time when they are in the other parents’ care and each parent shall do all things necessary to facilitate the children communicating with the other parent by telephone on a regular basis and that the mother’s communication with the children pursuant to this order be monitored by the father for a period of 12 months.

36.

That each party shall at all times:

(a) Be courteous and respectful to the other party and any members of the children’s families;

(b) Not to denigrate the other party or any members of the children’s families; and

(c) Be restrained from using profane language and making derogatory comments about the other party or any members of the children’s families in the presence or hearing of the children and shall remove the children from the presence of any person who is denigrating the other party or any members of the children’s families in the presence or hearing of the children.

37.

That the father shall:

(a) Do all things necessary and attend all appointments to continue his participation in the Brighter Futures Program until advised by that program’s coordinator that his participation is no longer required and he will ensure that the children are available for participation in that program; and

(b) Do all reasonable things to ensure the child B continuing attendance and engagement with therapeutic counselling provided by Mr H until Mr H informs the father that the child’s attendance is no longer required; and

(c) Himself attend upon, and ensure B’s participation with, such other professionals or support services as either or both of Mr H and the Brighter Futures Program may refer him to.

38.

That the Independent Children’s Lawyer have liberty to apply during the continuance of his appointment.

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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