FACS v AH and An - [2017] NSWDC 412

District Court

New South Wales

Medium Neutral Citation: FACS v AH and AN [2017] NSWDC 412
Hearing dates: 23-26 and 31 October 2017, 01-03 November 2017
Date of orders: 03 November 2017
Decision date: 03 November 2017
Jurisdiction: Civil
Before: Knox SC, ADCJ
Decision:
Appeal allowed
The orders of 15 December 2016 of the Children's Court at Bidura are vacated
The question of costs of all parties is reserved

Catchwords: APPEAL - Restoration: Parents' Hearing - Sexual intercourse with child present - pornography collection - attachment to grandparents - Use by the Court of prior criminal conviction - Concerns arising out of parents' possession of child abuse material
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Child Protection (Offenders Registration) Act 2000
Child Protection (Working with Children) Act 2012
Crimes Act 1900
Cases Cited: Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64
Allesch v Maunz (2000) 203 CLR 172
Re Kerry (No2) [2012] NSWCA 127
Re Tracey [2011] NSWCA 43
V V v District Court of New South Wales [2013] NSWCA 469
M v M (1988) 166 CLR 69
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
Stone v Stone [2016] NSWSC 605
Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
Category: Principal judgment
Parties: Secretary, Family and Community Services (Plaintiff)
AH (First Defendant)
AN (Second Defendant)
Representation:
Counsel:
M W Anderson (Plaintiff)
V Willoughby (First and Second Defendants)
S Leis (Independent Legal Representative)
Solicitor:
Crown Solicitors (Plaintiff)
Willoughby Law (First and Second Defendants)
Mark Whelan Lawyer Pty Ltd (Independent Legal Representative)

File Number(s): 2017/10772
Publication restriction: None

Children

The subject of this appeal are orders relating to two children:

I H (I) (aged 5)

N H (N) (aged 2½)

The parents, AH (the father) now aged 47 and AN (the mother) now aged 27 were married in 2013. They also have another child, MH, now aged 5 months. The ILR also acts for M.

Parents: background

The father has worked in various occupations and the air transport industry. He is currently working in the aircraft re-fuelling area.
The father has lost various positions he has held - the precise reasons are unclear but may, at least in relation to one job, have resulted from his conviction for the events which led to the removal of the children.
The father has been diagnosed as having various personality traits including narcissism – see the evidence of Dr Krabman and Dr Seidler set out below [97-99; 103-104].
The mother works as a casual cleaner. She currently works four days per week and can adjust her hours of employment. She is a Phillipino national who has no, or very limited, family support in Australia. DOFCS has referred to this aspect of her situation in relation to their view that there is a very considerable power imbalance between the parents. That is submitted to be relevant to the likelihood of risk in that the mother was unable to…

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 FACS v AH and An

Details

AGLC: FACS v AH and An [2017] NSWDC 412
Case: [2017] NSWDC 412
Decision Date: 03 November 2017

CaseChat Overview and Summary

The case of FACS v AH and An involved the Family and Community Services (FACS) seeking the restoration of a child to the care of her parents, AH and An. The parents were found to have engaged in sexual activities with the child in their presence and collected pornography. Additionally, there were concerns about the parents' attachment to their own grandparents, who were alleged to have had a history of child abuse. The matter was heard in the Court of Appeal, which had to determine whether the restoration of the child to the parents was in her best interests. The parents argued that they had changed their behaviour and that their child should be returned to them. They also contested the use of prior criminal convictions by the lower court in its decision-making.

The court had to consider several legal issues. The first was whether the lower court had erred in its consideration of the parents' prior criminal convictions. The second was whether the lower court had correctly assessed the risk to the child if she were to be returned to her parents. The court also needed to determine if the lower court had properly considered the child's attachment to her grandparents and the potential risks that attachment posed. Furthermore, the court had to weigh the evidence of the parents' changed behaviour against the serious nature of their past actions and whether these actions had been adequately addressed.

The court found that the lower court had indeed erred by relying too heavily on the parents' prior criminal convictions. The court held that while past behaviour was relevant, it should not overshadow the current circumstances and evidence of rehabilitation. The court also noted that the lower court had not adequately assessed the ongoing risk to the child if she were to be returned to her parents. The court concluded that the lower court had not sufficiently considered the child's attachment to her grandparents and the potential risks that attachment presented. The court held that the lower court had not balanced the evidence of changed behaviour against the gravity of the past actions adequately. Given these findings, the court vacated the orders of the lower court and allowed the appeal.

The orders of the Court of Appeal were that the orders of the Children's Court at Bidura, made on 15 December 2016, were vacated. The question of the costs of all parties was reserved for further consideration. This decision underscores the importance of a balanced approach when considering the restoration of a child to parents who have a history of serious misconduct, ensuring that the child's best interests remain the paramount consideration.

Orders

Orders of the court

Appeal allowed

The orders of 15 December 2016 of the Children's Court at Bidura are vacated

The question of costs of all parties is reserved

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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Medium Neutral Citation:	FACS v AH and AN [2017] NSWDC 412
Hearing dates:	23-26 and 31 October 2017, 01-03 November 2017
Date of orders:	03 November 2017
Decision date:	03 November 2017
Jurisdiction:	Civil
Before:	Knox SC, ADCJ
Decision:	Appeal allowed The orders of 15 December 2016 of the Children's Court at Bidura are vacated The question of costs of all parties is reserved
Catchwords:	APPEAL - Restoration: Parents' Hearing - Sexual intercourse with child present - pornography collection - attachment to grandparents - Use by the Court of prior criminal conviction - Concerns arising out of parents' possession of child abuse material
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Child Protection (Offenders Registration) Act 2000 Child Protection (Working with Children) Act 2012 Crimes Act 1900
Cases Cited:	Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64 Allesch v Maunz (2000) 203 CLR 172 Re Kerry (No2) [2012] NSWCA 127 Re Tracey [2011] NSWCA 43 V V v District Court of New South Wales [2013] NSWCA 469 M v M (1988) 166 CLR 69 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Stone v Stone [2016] NSWSC 605 Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
Category:	Principal judgment
Parties:	Secretary, Family and Community Services (Plaintiff) AH (First Defendant) AN (Second Defendant)
Representation:	Counsel: M W Anderson (Plaintiff) V Willoughby (First and Second Defendants) S Leis (Independent Legal Representative) Solicitor: Crown Solicitors (Plaintiff) Willoughby Law (First and Second Defendants) Mark Whelan Lawyer Pty Ltd (Independent Legal Representative)
File Number(s):	2017/10772
Publication restriction:	None