Fello and Sternfeldt - [2014] FamCA 312

FAMILY COURT OF AUSTRALIA

FELLO & STERNFELDT

[2014] FamCA 312

FAMILY LAW – CHILDREN – Father failed to participate in hearing – Applicant is a non-parent – Mother deceased – Father has ongoing drug use and no prospect of rehabilitation – Child currently living with Applicant pursuant to interim Orders and has a settled routine – No deficiencies in respect of Applicant’s capacity – Whether the child would benefit from continuing a relationship with the father having regard to his drug use – What risk the father poses to the child in respect of his drug use and whether any such risk can be ameliorated by the father’s time being supervised – Paternal grandmother considered suitable supervisor – Order for the Applicant to have sole parental responsibility – Child’s current living arrangements determined to be in his best interests and are to continue

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZN(7)
Family Law Rules 2004 (Cth) r 16.07

Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Donnell & Dovey [2010] FamCAFC 15

Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520

Valentine & Lacerra And Anor [2013] FamCAFC 53

Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Ms A Fello

RESPONDENT:

Mr Sternfeldt

INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitors

FILE NUMBER:

PAC

2504

2012

DATE DELIVERED:

15 May 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

6 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morley

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitors

Orders

That the Applicant maternal grandmother, Ms A Fello, have sole parental responsibility for the child T, born …, and for the purposes of this Order, the maternal grandmother shall notify the father and the paternal grandmother, Ms D, in relation to decisions with respect to the child’s health, education and/or major long-term issues in relation to the child.
That the child live with the Applicant.
That the child spend time with the father as follows:
(a)       Each Saturday from 2.00 pm until 6.00 pm;
(b)For four (4) hours during the Christmas period each year, at times as agreed, or failing agreement, between 10.00 am. and 2.00 pm on Christmas Eve in 2014 and in each alternate year thereafter, and on Christmas Day in 2015 and each alternate year thereafter;
(c)       On Father’s Day in each year from 10.00 am until 2.00 pm;
(d)At a time around the child’s birthday each year at times and on a date as agreed between the parties; and
(e)       For such further and other periods as agreed between the parties.
That the father’s time with the child shall be in the presence of the paternal grandmother, Ms D, unless otherwise agreed.
That for the…

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 Fello and Sternfeldt

Details

AGLC: Fello and Sternfeldt [2014] FamCA 312
Case: [2014] FamCA 312
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by the maternal grandmother, Ms A Fello, for sole parental responsibility for her grandson, T, following the death of the child's mother. The respondent was the child's father, Mr Sternfeldt. The child had been living with the applicant pursuant to interim orders and had established a settled routine. The father had failed to participate in the hearing.

The court was required to determine whether the child would benefit from continuing a relationship with his father, given the father's ongoing drug use and lack of prospect for rehabilitation. It also needed to assess the risk the father posed to the child due to his drug use and whether any such risk could be mitigated by supervised contact, with the paternal grandmother being considered a suitable supervisor.

The court reasoned that the child's current living arrangements with the maternal grandmother were in his best interests, noting the absence of deficiencies in the applicant's capacity to care for him. The father's failure to participate in the proceedings and his demonstrated drug use were significant factors. The court applied the principles of the *Family Law Act 1975* (Cth), particularly those concerning the best interests of the child, including the importance of the child maintaining a relationship with both parents where appropriate, but also the need to protect the child from harm.

The court ordered that the applicant have sole parental responsibility for the child, with the child to live with her. The father was granted supervised time with the child each Saturday afternoon, as well as specific periods during Christmas, Father's Day, and the child's birthday, with the paternal grandmother supervising these visits. The court also made detailed orders regarding communication, medical information, and the ability for the applicant to obtain a passport for the child without the father's consent.

Orders