IBBOTT & CHACONAS AND ORS - [2014] FamCA 73

FAMILY COURT OF AUSTRALIA

IBBOTT & CHACONAS AND ORS

[2014] FamCA 73

FAMILY LAW – CHILDREN – Best interests – parental responsibility – with whom the children shall live and spend time – three children with two different fathers – the children were all living with the mother – risk of harm by neglect, physical abuse, exposure to family violence, and inadequate supervision in the care of either the mother or the second respondent – two children have significant health problems – mother contravened interim orders – separation of siblings – presumption of equal shared parental responsibility applies to the parents of the eldest child – eldest child to live with the applicant – two youngest children to live with the interveners and they have equal shared parental responsibility – all children to spend limited supervised time with the mother – second respondent able to spend time with the two youngest children as he lives in the same household – interveners have little insight into the second respondent’s impaired parenting capacity – injunction made preventing the second respondent’s unsupervised care of the children for more than 12 hours – injunction preventing the second respondent from contacting the mother

FAMILY LAW – EVIDENCE – Paternal grandfather’s evidence not adduced independently – deprivation of weight due to simple adoption of the paternal grandmother’s evidence

Crimes Act 1900 (NSW) s 61AA

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B
Australian Barristers Rules 69-71

NSW Solicitors Rule 25

Day v Perisher Blue (2005) 62 NSWLR 731

APPLICANT:

Mr Ibbott

FIRST RESPONDENT:

Ms E Chaconas

SECOND RESPONDENT:

Mr B Chaconas

INTERVENERS:

Mr J Chaconas & Ms P Chaconas

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

3341

2012

DATE DELIVERED:

18 February 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

29, 30, 31 January and 4 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Weightman

SOLICITOR FOR THE APPLICANT:

MRM Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr M Graham

SOLICITOR FOR THE FIRST RESPONDENT:

Jennifer Blundell & Associates

COUNSEL FOR THE SECOND RESPONDENT:

N/A

SOLICITOR FOR THE SECOND RESPONDENT:

N/A

COUNSEL FOR THE INTERVENER:

Mr G Levick

SOLICITOR FOR THE INTERVENER:

Peter Hamilton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr A Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Discharge of former orders

All former orders relating to the following children (“the children”) are discharged:
(a)C Allen-Ibbott, born … May 2009 (“C” );
(b)D Chaconas, born … January 2011 (“D”); and
(c)F Chaconas, born … January 2011 (“F”).

Name

The parties are restrained from causing or permitting C to be known by any surname other than “Allen-Ibbott”.

Parental Responsibility

The applicant and first respondent shall have equal shared parental responsibility for C.
The interveners shall have equal shared parental responsibility for D and F.

Residence

C shall live with the applicant.
D and F shall live with…

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 IBBOTT & CHACONAS AND ORS

Details

AGLC: IBBOTT & CHACONAS AND ORS [2014] FamCA 73
Case: [2014] FamCA 73
Decision Date: 18 February 2014

CaseChat Overview and Summary

In the matter of *IBBOTT & CHACONAS AND ORS*, Austin J of the Family Court of Australia considered the living arrangements and parental responsibility for three children: C, D, and F. The dispute involved the mother (the first respondent), the applicant father of C, the second respondent father of D and F, and interveners who were caring for D and F. The children were all residing with the mother, but concerns were raised regarding risks of harm, including neglect, physical abuse, exposure to family violence, and inadequate supervision, in the care of either the mother or the second respondent. Two of the children, D and F, had significant health problems, and the mother had contravened previous interim orders.

The court was required to determine the best interests of the children, specifically with whom they should live and spend time, and how parental responsibility should be allocated. Key issues included the application of the presumption of equal shared parental responsibility, the separation of siblings, and the need for protective measures given the identified risks. The court also had to consider the weight to be given to evidence, noting that the paternal grandfather's evidence was not adduced independently and was given less weight due to its simple adoption of the paternal grandmother's evidence.

Austin J applied the principles of the *Family Law Act 1975* (Cth) concerning the best interests of the child. The presumption of equal shared parental responsibility was applied to the parents of the eldest child, C. The court ordered that C live with the applicant, while D and F were to live with the interveners, who were granted equal shared parental responsibility for them. All children were to spend limited, supervised time with the mother. The second respondent was permitted to spend time with D and F as he lived in the same household as them, but given the interveners' limited insight into his parenting capacity, an injunction was made preventing his unsupervised care of the children for more than 12 hours and restraining him from contacting the mother.

The court discharged all former orders relating to the children. C was to be known by the surname "Allen-Ibbott". The applicant and first respondent were granted equal shared parental responsibility for C, and the interveners were granted equal shared parental responsibility for D and F. C was ordered to live with the applicant, and D and F were ordered to live with the interveners. Specific arrangements were made for the children to spend time with their respective parents and the interveners, with supervision mandated for certain periods. Further orders included restraints on corporal punishment, denigration of other parties, and requirements for communication regarding medical emergencies. The second respondent was restrained from approaching the first respondent's residence and from unsupervised care of the children for extended periods. Costs were reserved.

Orders

Orders of the court

Discharge of former orders

All former orders relating to the following children (“the children”) are discharged:

(a) C Allen-Ibbott, born … May 2009 (“C” );

(b) D Chaconas, born … January 2011 (“D”); and

Name

The parties are restrained from causing or permitting C to be known by any surname other than “Allen-Ibbott”.

Parental Responsibility

The applicant and first respondent shall have equal shared parental responsibility for C.

The interveners shall have equal shared parental responsibility for D and F.

Residence

C shall live with the applicant.

D and F shall live with the interveners.

Spending Time (C)

The applicant, first respondent, and interveners shall take all reasonable steps to ensure that C spends time with:

(a) The first respondent (unless otherwise agreed between the applicant and first respondent):

(i) From 1.00 pm until 5.00 pm each Saturday;

(ii) From 1.00 pm until 5.00 pm on Mother’s Day; and

(iii) From 3.00 pm until 7.00 pm on Christmas Day.

(b) The interveners (unless otherwise agreed between the applicant and interveners), from 9.00 am until 5.00 pm on the first Sunday of each month.

For the purpose of implementing Order 7(a) hereof:

(a) The time spent by C with the first respondent shall be supervised by either the maternal grandmother (Ms A), maternal step grandfather (Mr G), or any other person agreed upon by the applicant, first respondent, and interveners;

(b) The applicant shall ensure the delivery of C to the home of the maternal grandmother at the commencement of the time he is to spend with the first respondent; and

(c) The first respondent shall ensure the return of C to the home of the applicant at the conclusion of the time he spends with the first respondent.

For the purpose of implementing Order 7(b) hereof:

(a) The applicant shall ensure the delivery of C to the home of the interveners at the commencement of the time he is to spend with the interveners; and

(b) The interveners shall ensure the return of C to the home of the applicant at the conclusion of the time he spends with the interveners.

Spending Time (D and F)

10.

The applicant, first respondent, and interveners shall take all reasonable steps to ensure that D and F spend time with the first respondent (unless otherwise agreed between the interveners and first respondent):

(a) From 1.30 pm until 5.30 pm each Saturday;

(b) From 1.30 pm until 5.30 pm on Mother’s Day; and

11.

For the purpose of implementing Order 10 hereof:

(a) The time spent by D and F with the first respondent shall be supervised by either the maternal grandmother (Ms A), maternal step grandfather (Mr G), or any other person agreed upon by the applicant, first respondent, and interveners;

(b) The interveners shall ensure the delivery of D and F to the home of the maternal grandmother at the commencement of the time they are to spend with the first respondent; and

(c) The first respondent shall ensure the return of D and F to the home of the interveners at the conclusion of the time they spend with the first respondent.

Communication

12.

Unless otherwise agreed between the parties:

(a) Each Wednesday at 6.00 pm the interveners shall telephone the applicant and the applicant and interveners will then take all reasonable steps to ensure that the children communicate with one another;

(b) Each Wednesday at 6.15 pm the first respondent shall telephone the interveners and the interveners will then take all reasonable steps to ensure that D and F communicate with the first respondent; and

(c) Each Wednesday at 6.30 pm the first respondent shall telephone the applicant and the applicant will then take all reasonable steps to ensure that C communicates with the first respondent.

Miscellaneous

13.

Pursuant to s 68B of the Family Law Act, the second respondent is restrained from entering upon or approaching within 100 metres of the first respondent’s residence.

14.

The interveners are restrained from causing or permitting C, D or F to remain in the care or physical presence of the second respondent for longer than 12 consecutive hours without supervision by either intervener.

15.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

16.

Each party is restrained from denigrating any other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any other.

17.

Each party shall notify the others of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the others about the condition and treatment of the children.

18.

The applicant shall authorise and request the principal of any school attended by C to provide to the first respondent and interveners, at their expense, copies of all school reports and school photograph order forms relating to C.

19.

The interveners shall authorise and request the principal of any school attended by D and F to provide to the first respondent, at her expense, copies of all school reports and school photograph order forms relating to D and F.

20.

Leave is granted to the parties to furnish sealed copies of these orders to the principals of any schools attended by the children.

21.

The applicant, second respondent, and interveners (but not the first respondent) shall forthwith inform one another and the first respondent, and keep them informed, in writing of their respective current residential address and contact telephone number.

22.

The first respondent shall forthwith inform the applicant and interveners, and keep them informed, in writing of the maternal grandmother’s residential address and contact telephone number.

23.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

24.

Costs are reserved for 28 days.

25.

Any and all outstanding applications are dismissed.

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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