Fanning and Kress and Anor - [2019] FCCA 1765

FEDERAL CIRCUIT COURT OF AUSTRALIA

FANNING & KRESS & ANOR

[2019] FCCA 1765

Catchwords:
FAMILY LAW – Parenting – significant family violence – where applicant, a convicted murderer, seeks sole parental responsibility – where first respondent mother currently has significant issues as to parenting capacity – where second respondent grandmother provides stable care – whether applicant should have no spend time – spend time arrangements – supervision – applicable principles – whether spend time arrangements present an unacceptable risk to the child – family violence – illicit substance abuse – supervised time at contact centre.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 11F, 60, 60B, 60CA, 60CC, 65D, 69ZW, 70Q, 91B
Children, Youth and Families Act 2005 (Vic), ss.38, 22, 162

Cases cited:

A & A (1998) FLC 92.800

B & B (1993) FLC 92-357
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Betros & Betros [2017] FamCAFC 90

Carpenter & Carpenter [2014] FamCAFC 100

Carpenter & Lunn [2009] FamCAFC 128
Champness v Hanson (2009) FLC 93-407

Cowling & Cowling (1998) 22 Fam LR 776

Farmer & Rogers [2010] FamCAFC 253
Goode & Goode (2006) 36 Fam LR 422
Gorman & Huffman & Anor [2016] FamCAFC 174
H & K [2001] FamCA 687
Harridge & Harridge [2010] FamCA 445

Jarrah & Fadel [2014] Fam CAFC 14

Makita (Australia) Pty Ltd v Sprowles(2001) 52 NSWLR 705
M v M (1988) 166 CLR 69
Moose & Moose (2008) FLC 93-375

Oswald & Karrington [2016] FamCAFC 152

R v Fanning [1999] VSCA 135
Rice & Asplund (1979) FLC 90-725
Rocacelli & Seles [2019] FamCA 105
Slater & Light [2013] FamCAFC 4
Stott & Holgar & Anor [2017] FamCAFC 152

Texts referred to: B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569

Guideline for Family Law Courts a Children’s Contact Services January 2007

Applicant:

MR FANNING

First Respondent:

MS KRESS

Second Respondent:

MS SIMS

Intervener:

DEPARTMENT OF HEALTH AND HUMAN SERVICES

File Number:

MLC 6357 of 2018

Judgment of:

Judge A Kelly

Hearing dates:

17, 18 June 2019

Date of Last Submission:

18 June 2019

Orders Pronounced:

27 June 2019

Delivered at:

Melbourne

Delivered on:

27 June 2019

REPRESENTATION

The Applicant:

In Person

Counsel for the First Respondent:

Mr Taghdir

Solicitors for the First Respondent:

Marcou & Associates

Counsel for the Second Respondent:

Ms Agresta

Solicitors for the Second Respondent:

Higgins Legal

Counsel for the Independent Children's Lawyer:

Ms Buchanan

Solicitors for the Independent Children's Lawyer:

Clark Family Law

Counsel for the Department of Health and Human Services:

Ms Benson

ORDERS

The Department of Health and Human Services have leave to intervene in this proceeding.
All earlier parenting orders are discharged.
Until further order, the second respondent have sole parental responsibility for the child, [X] born … 2015 (Child).
Until further order, the Child live with the second respondent.
Until further order, the Child spend time with the first respondent on condition that such time be substantially supervised by the second respondent and in such…

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: [2019] FCCA 1765
Decision Date: 27 June 2019

CaseChat Overview and Summary

In the matter of *Fanning and Kress and Anor*, Judge A Kelly of the Family Court of Australia considered an application concerning the parental responsibility and living arrangements for a child born in 2015. The applicant, the child's father, who is a convicted murderer, sought sole parental responsibility. The first respondent, the child's mother, was experiencing significant difficulties with her parenting capacity, while the second respondent, the child's grandmother, was providing a stable care environment. The court was required to determine whether the applicant should have no time with the child, the appropriate conditions for any supervised time, and whether the proposed arrangements presented an unacceptable risk to the child, given the history of family violence and illicit substance abuse.

The court's reasoning focused on the paramountcy of the child's welfare and the need to protect the child from unacceptable risk. Applying the principles relevant to parenting orders in circumstances involving family violence and parental capacity issues, the court considered the evidence presented regarding the applicant's criminal history and the mother's parenting challenges. The court determined that supervised time at a contact centre was necessary to mitigate risks.

The court ordered that all earlier parenting orders be discharged. Until further order, the second respondent was granted sole parental responsibility and the child was to live with her. The child was to spend time with the first respondent mother, but this time was to be substantially supervised by the second respondent. The child was also to spend time with the applicant father, but this was subject to strict conditions, including monthly intervals, supervision at a designated contact centre, and a three-hour maximum duration per session. The applicant's sister was required to undertake an undertaking to facilitate the child's transport for these contact arrangements. Furthermore, the applicant was restrained from communicating with or being within 200 metres of the second respondent or her residence. The court also made orders for the parties to enrol in post-separation parenting programs, continue psychological consultations, and undertake intensive counselling and psychiatric assessments. The proceeding was subsequently transferred to the Family Court of Australia.

Orders

Orders of the court

The Department of Health and Human Services have leave to intervene in this proceeding.

All earlier parenting orders are discharged.

Until further order, the second respondent have sole parental responsibility for the child, [X] born … 2015 (Child).

Until further order, the Child live with the second respondent.

Until further order, the Child spend time with the first respondent on condition that such time be substantially supervised by the second respondent and in such manner as the second respondent may consider to be appropriate from time to time.

Subject to paragraphs 7 – 9 of this order, until further order the Child spend time with the applicant.

The time spent by the child with the applicant shall be subject to the following conditions:

(a) the time shall occur at monthly intervals;

(b) the time shall take place at Suburb B Contact Centre or such other centre as made accommodate the parties (Centre) for as long as that Centre is able to provide that service;

(c) the Centre is requested to facilitate time in the first week of each month commencing no earlier than August 2019 on such date as the Centre may nominate and for a period not exceeding three hours;

(d) the Centre is requested to provide a report in relation to such contact time;

(e) the applicant’s sister, Ms A, is to file and serve an undertaking that she shall take all steps as may reasonably be required to collect, deliver and return the Child to and from the second respondent’s residence and Centre respectively.

For the purposes of such spend time and changeover:

(a) the first respondent whether by herself her servants or agents shall facilitate delivery of the Child to the applicant’s sister, Ms A;

(b) Ms A shall collect, deliver and return the Child to and from the second respondent’s residence and Centre respectively.

The father be restrained, whether by himself his servants or agents or howsoever otherwise from communicating with or being within 200m of the second respondent or her residence.

10.

The applicant and first respondent enrol in, undertake and complete a post separation parenting program and furnish a certificate of completion to the other.

11.

The applicant and first respondent continue to consult and follow the recommendations of their respective psychologists.

12.

The applicant undertake counselling on an intensive basis to address the matters considered in these reasons for judgment and is at liberty to provide a copy of these reasons for judgment to such psychologist as many provide such counselling.

13.

The applicant and first respondent to all things as may reasonably be necessary to consult with a psychiatrist to be nominated by the Independent Children’s Lawyer in order that a psychiatric assessment and report may be obtained.

14.

The Independent Children’s Lawyer be requested to seek financial assistance of Legal Aid Victoria for the purposes of obtaining a psychiatric assessment of each of the applicant and first respondent.

15.

The proceeding be transferred to the Family Court of Australia.

16.

These reasons for judgment may be provided by a party, the Independent Children’s Lawyer or the Department of Health and Human Services to a state court.

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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