Guinn and O’Hare and Anor - [2018] FCCA 3219

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUINN & O’HARE & ANOR

[2018] FCCA 3219

Catchwords:
FAMILY LAW – Parenting – risk of harm – children living with maternal grandmother – significant involvement with the Department of Family and Community Services – young mother – children with significant and complex needs and behavioural issues – children to live with mother.

Legislation:

Family Law Act 1975, ss.60CA, 60B, 60CC, 60CG, 65DAA

Cases cited:

Donnell & Dovey [2010] FamCAFC 15

Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant:

MS GUINN

First Respondent:

MS O’HARE

Second Respondent:

MR DUFFY

Third Respondent

MR BRYAN

File Number:

DUC 318 of 2016

Judgment of:

Judge Obradovic

Hearing dates:

13, 14, 15 and 16 August 2018

Date of Last Submission:

16 August 2018

Delivered at:

Parramatta

Delivered on:

16 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Hill

Solicitors for the Applicant:

Longman Hill Solicitors

Counsel for the First Respondent:

Ms Arulrajah

Solicitors for the First Respondent:

Thompson Madden Solicitors

Appearing for the Second Respondent:

No appearance

Appearing for the Third Respondent

Counsel for the Independent Children's Lawyer:

No appearance

Ms Lioumis

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

ORDERS

That the children X (born … 2014) and Y (born … 2015) shall live with the mother subject to order 2 , 3 and 4.
That the mother shall have sole parental responsibility for the children.
That for a period of two years order 1 is subject to the Mother and children residing at the property of the maternal grandfather.
That order 1 will commence on the maternal grandfather and Ms A providing written undertaking as follows:
(a)That the mother and the children are permitted to reside with Ms A and Mr E;
(b)That in the event that the children cease to reside in the home that notification will be made within 24 hours of such event by Ms A and Mr E to the Department of Family and Community Services;
That the maternal grandmother spend time with the children as follows:
(a)Each alternate Saturday from 10.00am until 4.00pm;
(b)And any other time as agreed between the mother and maternal grandmother.
That for any period of time spent between the maternal grandmother and the children she shall ensure that Mr B and Mr C are not to be present.
That within fourteen (14) days of the date of these orders that the mother is to obtain a referral to the Paediatric Clinic at J Hospital or other service provider for X and Y to undergo a global paediatric assessment.
That the mother shall attend at, and ensure that the children attend, and the mother shall follow all recommendations made as a result of the paediatric assessment; including allied medical health services, such as and including physiotherapy, speech therapy, occupational therapy, speech pathology and any other recommenced therapy as a result of…

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: [2018] FCCA 3219
Decision Date: 16 November 2018

CaseChat Overview and Summary

In the matter of *Guinn and O’Hare*, Judge Obradovic of the Family Court of Australia considered a dispute concerning the living arrangements and parental responsibility for two children, X and Y. The children had been living with their maternal grandmother, and there was significant involvement from the Department of Family and Community Services. The mother was described as young, and the children presented with significant and complex needs and behavioural issues.

The central legal issue before the court was to determine the best interests of the children, specifically whether they should live with their mother or continue to reside with their maternal grandmother, given the identified risks and complexities. This involved assessing the capacity of each party to provide a safe and nurturing environment, and to manage the children's significant needs.

The court reasoned that despite the involvement of the Department of Family and Community Services and the children's complex needs, the children should live with their mother. This decision was made conditional on specific undertakings and orders designed to ensure the children's safety and well-being. The mother was granted sole parental responsibility. For a period of two years, the mother and children were required to reside at the maternal grandfather's property, contingent on written undertakings from the maternal grandfather and Ms A. These undertakings included permitting the mother and children to reside there and notifying the Department of Family and Community Services within 24 hours if the children ceased to reside at the home. The maternal grandmother was granted specific, supervised time with the children, with conditions to ensure certain individuals were not present. Crucially, the court ordered the mother to obtain a global paediatric assessment for both children and to follow all recommendations, including various therapies. The mother was also ordered to keep the maternal grandmother, maternal grandfather, and Ms A informed of all medical and therapy appointments and to provide them with copies of reports.

The court ordered that the children X and Y shall live with the mother, subject to the aforementioned conditions. The mother was granted sole parental responsibility. The orders also stipulated the terms of residence, the required undertakings, the contact arrangements for the maternal grandmother, and the comprehensive medical and therapeutic assessments and follow-up required for the children.

Orders

Orders of the court

That the children X (born … 2014) and Y (born … 2015) shall live with the mother subject to order 2 , 3 and 4.

That the mother shall have sole parental responsibility for the children.

That for a period of two years order 1 is subject to the Mother and children residing at the property of the maternal grandfather.

That order 1 will commence on the maternal grandfather and Ms A providing written undertaking as follows:

(a) That the mother and the children are permitted to reside with Ms A and Mr E;

(b) That in the event that the children cease to reside in the home that notification will be made within 24 hours of such event by Ms A and Mr E to the Department of Family and Community Services;

That the maternal grandmother spend time with the children as follows:

(a) Each alternate Saturday from 10.00am until 4.00pm;

(b) And any other time as agreed between the mother and maternal grandmother.

That for any period of time spent between the maternal grandmother and the children she shall ensure that Mr B and Mr C are not to be present.

That within fourteen (14) days of the date of these orders that the mother is to obtain a referral to the Paediatric Clinic at J Hospital or other service provider for X and Y to undergo a global paediatric assessment.

That the mother shall attend at, and ensure that the children attend, and the mother shall follow all recommendations made as a result of the paediatric assessment; including allied medical health services, such as and including physiotherapy, speech therapy, occupational therapy, speech pathology and any other recommenced therapy as a result of the paediatric assessment in Order (7).

That the mother shall provide to the maternal grandmother within 7 days of receiving same:

(a) Details of any medical appointments, specialists appointments and therapy appointments;

(b) Copies of reports received from any schools, pre-schools, medical and medical specialists and therapists.

10.

That the mother shall ensure that the maternal grandmother, maternal grandfather and Ms A are aware of any medical and allied therapy appointments and shall be able to attend.

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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