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HADDON & BANOS

HADDON & BANOS

Case [2019] FCCA 2865 9 October 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

HADDON & BANOS

[2019] FCCA 2865

Catchwords:
FAMILY LAW – Parenting – best interests of the children – allegations of severe family violence – assessment of risk – unacceptable risk – sole parental responsibility – no time.

Legislation:

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), Pt VII, ss.4, 4AB(1), 4AB(2), 4AB(4), 11F, 60B, 60B(1), 60CA, 60CC(2), 60CC(3), 61DA, 65D

Cases cited:

Andrew & Delaine [2009] FamCAFC 182

B and B [1993] FamCA 143
Betros & Betros [2017] FamCAFC 90

Grella & Jamieson [2017] FamCAFC 21

In the Marriage of Hall [1979] FamCA 73

M & M [1998] FamCA 1742
M v M [1988] HCA 68
N and S and the Separate Representative [1995] FamCA 139
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
Slater & Light [2013] FamCAFC 4
Tait & Densmore [2007] FamCA 1383

Applicant:

MR HADDON

Respondent:

MS BANOS

File Number:

MLC 8323 of 2018

Judgment of:

Judge Carter

Hearing dates:

29 & 30 August 2019

Date of Last Submission:

30 August 2019

Delivered at:

Melbourne

Delivered on:

9 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr Willee

Solicitors for the Applicant:

Randles Cooper & Co

Counsel for the Respondent:

Ms Bastick

Solicitors for the Respondent:

Cathleen Corridon & Associates

Counsel for the Independent Children's Lawyer:

Mr Eidelson

Solicitors for the Independent Children's Lawyer:

Westminster Lawyers Pty Ltd

ORDERS

All previous parenting orders in relation to the children Y born on … 2011 and X born on … 2014 (collectively, “the children”) be discharged.
The Mother have sole parental responsibility for the children.
The children live with the Mother.
The children spend no time and have no communication with the Father.
The Respondent Mother MS BANOS may apply for a passport for the children or either of them, without first obtaining the consent of the Applicant Father MR HADDON.
For the purposes of order (5) hereof, liberty is granted to the solicitors for the Respondent Mother, Messrs. Cathleen Corridon & Associates, to provide a copy of these orders to the Department of Foreign Affairs and Trade.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Haddon & Banos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8323 of 2018

MR HADDON

Applicant

And

MS BANOS

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings I have been asked to determine parenting arrangements for the two children of the parties, Y born on … 2011, aged 8 (“Y”) and X born on … 2014,…

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 HADDON & BANOS

Details

AGLC: HADDON & BANOS [2019] FCCA 2865
Case: [2019] FCCA 2865
Decision Date: 9 October 2019

CaseChat Overview and Summary

In the matter of *Haddon & Banos*, Judge Carter of the Family Court of Australia considered parenting orders concerning two children, Y and X. The dispute involved allegations of severe family violence by the Father, Mr. Haddon, and the assessment of risk to the children.

The Court was required to determine whether the existing parenting orders should be discharged and, if so, what new orders were in the children's best interests, particularly in light of the alleged family violence. Key issues included the assessment of unacceptable risk posed by the Father, and whether the Mother should have sole parental responsibility and the children live with her, with no time or communication with the Father.

Judge Carter's reasoning focused on the paramount consideration of the children's best interests, as mandated by the *Family Law Act 1975*. The Court assessed the evidence relating to the allegations of severe family violence and determined that there was an unacceptable risk to the children if they had contact with the Father. Applying principles of child protection and the assessment of risk in family law proceedings, the Court concluded that sole parental responsibility for the Mother and no time or communication with the Father were necessary to ensure the children's safety and well-being.

Consequently, the Court ordered the discharge of all previous parenting orders. The Mother was granted sole parental responsibility, and the children were ordered to live with her. The children were to spend no time and have no communication with the Father. The Mother was permitted to apply for passports for the children without the Father's consent, and liberty was granted to her solicitors to provide a copy of the orders to the Department of Foreign Affairs and Trade. All extant applications were dismissed.

Orders

Orders of the court

All previous parenting orders in relation to the children Y born on … 2011 and X born on … 2014 (collectively, “the children”) be discharged.

The Mother have sole parental responsibility for the children.

The children live with the Mother.

The children spend no time and have no communication with the Father.

The Respondent Mother MS BANOS may apply for a passport for the children or either of them, without first obtaining the consent of the Applicant Father MR HADDON.

For the purposes of order (5) hereof, liberty is granted to the solicitors for the Respondent Mother, Messrs. Cathleen Corridon & Associates, to provide a copy of these orders to the Department of Foreign Affairs and Trade.

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

HADDON & BANOS [2019] FCCA 2865

Most Recent Citation

Archer & Murray (No 2) [2022] FedCFamC2F 884

Cases Citing This Decision

Archer & Murray (No 2) [2022] FedCFamC2F 884
Citation 1 (Para 28)

…It is well-established that courts should be hesitant to deprive a child of any contact or time with their parent. For example, in Haddon & Banos [2019] FCCA 2865, the Court cited with approval W (Sex Abuse: Standard of Proof) [2004] FamCA 768 in the following terms: 217.Cases in which one parent seeks an order tha…

See all citing cases →

Cases Cited

Betros & Betros [2017] FamCAFC 90
Citation 1 (Para 3)

…supervision will alleviate the risk of harm or abuse to the children. I note that the Full Court of the Family Court of Australia in Betros & Betros [2017] FamCAFC 90 considered the question of ongoing, long-term supervision. Their Honours said at paragraph 13 that:- It has long been recognised that the permanent i…
Grella & Jamieson [2017] FamCAFC 21
Citation 2 (Para 7)

…to what is “ proper ”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:- A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant element…
Slater & Light [2013] FamCAFC 4
Citation 3 (Para 5)

…In Slater & Light [2013] FamCAFC 4, the Full Court of the Family Court of Australia generally agreed with the factors expressed by Justice Fogarty writing extra-judicially, and set out these factors at paragraph 37 as follows:- 1 The decisive issue is and always remains the best interests of that child. All other i…
Andrew & Delaine [2009] FamCAFC 182
Citation 4 (Para 3)

…art of a myriad of evidence in this case that I am required to take into account. The Full Court of the Family Court of Australia in Andrew & Delaine [2009] FamCAFC 182 endorsed the view taken by the Full Court in In the Marriage of Hall [1979] FamCA 73 at paragraph 24, where their Honours held:- In view of the comme…
Tait & Densmore [2007] FamCA 1383
Citation 5 (Para 3)

…In Tait & Densmore [2007] FamCA 1383, Cronin J said at paragraph 170:- To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relat…
Re W (Sex abuse: standard of proof) [2004] FamCA 768
Citation 6 (Para 1)

…er options and alternatives should be explored. An order for no time is an order of last resort. Their Honours in Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 at paragraph 19:- The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Cou…
M & M [1998] FamCA 1742
Citation 7 (Para 12)

…His Honour Justice Mullane observed in the case of M & M [1998] FamCA 1742 at paragraph 94:- The father's abusive behaviour presents a multi faceted danger for the children. There is a risk of violence to them personally and injury. There is a risk that violence poses when it involves living with fear, insecurity an…
N & S & The Separate Representative [1995] FamCA 139
Citation 8 (Para 3)

…His Honour Justice Fogarty provided the following guidance in N and S and the Separate Representative [1995] FamCA 139 at paragraph 138:- Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, an…
M v M [1988] HCA 68
Citation 9 (Para 1)

…The High Court in M v M [1988] HCA 68 said that, in relation to allegations of sexual abuse, the Court is not required to arrive at a “ definitive conclusion ” as to whether such abuse has occurred. The High Court of Australia considered the “ magnitude of risk ” that would justify a judge in denying a parent ti…
I am particularly mindful of the well known comment from the case In the Marriage of Hall [1979] FAMCA 73
Citation 10 (Para 3)

…ll Court of the Family Court of Australia in Andrew & Delaine [2009] FamCAFC 182 endorsed the view taken by the Full Court in In the Marriage of Hall [1979] FamCA 73 at paragraph 24, where their Honours held:- In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be h…
B and B [1993] FAMCA 143
Citation 11 (Para 2)

…In B and B [1993] FamCA 143, the Full Court of the Family Court of Australia said:- The “unacceptable risk'' test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. I…

Legislation Cited

Evidence Act 1995 (Cth) 140
2 mentions (from Para 3)
Family Law Act 1975 (Cth)
1 mention (from Para 8)