Felton & Anor & Chupin - [2019] FamCA 741

FAMILY COURT OF AUSTRALIA

FELTON AND ANOR & CHUPIN

[2019] FamCA 741

FAMILY LAW – CHILDREN – Undefended hearing – Best Interests – Where the applicants are non-parents – Where the mother has expressed consent to orders sought but disengaged due to ill health – Where father has no relationship with the child – Where there is a history of family violence perpetrated by the father – Where there are serious concerns as to the mother’s capacity to care for the child – Where the applicants the maternal grandmother and her partner have had the primary care of the child for some years – Where orders made as sought in the earlier Application for Consent Orders sought by the maternal grandmother, her de facto partner and the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Dispense with service – Where maternal grandmother and the de facto partner seek that service be dispensed with upon the father – Where there is an unacceptable risk of harm to the child and the mother – Where the father has failed to make attempts to spend time with the child since birth – Where the father’s whereabouts is unknown – Where order made dispensing with service.

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

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

FIRST APPLICANT:

Ms Felton

SECOND APPLICANT:

Ms Paprocki

RESPONDENT:

Ms Chupin

FILE NUMBER:

PAC

863

2019

DATE DELIVERED:

14 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

22 July 2019

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT:

Ms Messner

SOLICITOR FOR THE FIRST APPLICANT:

Sydney Law Group Pty Ltd

COUNSEL FOR THE SECOND APPLICANT:

Ms Messner

SOLICITOR FOR THE SECOND APPLICANT:

Sydney Law Group Pty Ltd

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

Orders Made On 22 July 2019

Parenting Orders

That the First and Second Applicants have joint parental responsibility for the child, namely X born … 2013 and currently 5 years of age (“the child”).
That the child shall live with the First and Second Applicants.
Subject to Order 4, that the child will spend time with the Respondent mother as follows:
3.1For a minimum of 3 hours each week at times arranged between the parties;
3.2For a minimum of 2 hours on the child’s birthday being … of each year;
3.3For a minimum of 2 hours on the Respondent mother’s birthday being … of each year;
3.4For a minimum of 3 hours during the period 20 December to 25 December of each year for Christmas celebrations.
3.5For a minimum of 2 hours on Mother’s Day each year;
3.6At such other or additional times as is agreed between the parties from time…

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 Felton & Anor & Chupin

Details

AGLC: Felton & Anor & Chupin [2019] FamCA 741
Case: [2019] FamCA 741
Decision Date: 14 October 2019

CaseChat Overview and Summary

In the matter of *Felton & Anor & Chupin*, Foster J of the Family Court of Australia considered an application concerning the welfare of a child. The applicants, identified as the maternal grandmother and her de facto partner, sought orders relating to the child. The mother, while initially consenting to the orders sought, had disengaged from proceedings due to ill health. The father had no existing relationship with the child and a history of family violence was noted.

The court was required to determine whether to dispense with service of the application upon the father, given his unknown whereabouts and the potential risk of harm to the child and mother. Furthermore, the court had to consider the best interests of the child in making final parenting orders, particularly in circumstances where the applicants had provided primary care for some years, the mother's capacity to care was a concern, and the father had no ongoing involvement with the child.

Foster J reasoned that dispensing with service on the father was appropriate due to the unacceptable risk of harm to the child and mother, the father's lack of engagement with the child since birth, and his unknown whereabouts. Applying the principles of the *Family Law Act 1975* (Cth) concerning the best interests of the child, the court found that it was in the child's best interests for the orders sought by the maternal grandmother and her partner to be made. These orders reflected the de facto care arrangements that had been in place for some years.

The court made orders as sought in the earlier Application for Consent Orders, granting the maternal grandmother and her de facto partner the primary care of the child.

Orders