JARDINE & SACKVILLE - [2020] FamCA 346

FAMILY COURT OF AUSTRALIA

JARDINE & SACKVILLE

[2020] FamCA 346

FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Where the two subject children are aged eight and six years – Where the applicant father sought orders for the children, posited on three alternate bases, depending upon findings being made about whether either party poses an unacceptable risk of harm to the children – Where the respondent mother’s position has always been for the father’s elimination from the children’s lives – Where the children currently live with the mother and are estranged from the father – Where the Independent Children’s Lawyer generally supported the recommendations made by the Family Consultant and endorsed the mother’s position – Where the Family Consultant supported the proposals made by the mother and the Independent Children’s Lawyer – Where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where there is a deterioration of the children’s relationship with the father and they have more meaningful relationships with the mother – Where allegations of family violence, child abuse and neglect are considered – Where the father has a history of violence and criminal convictions – Where there is a current apprehended violence order in place protecting the mother and the children from the father – Where the father poses a material risk of harm to the children – Where orders are made conformably with those proposed by the mother and the Independent Children’s Lawyer – Where supervised contact between the father and the children is not appropriate – Where the children shall live with the mother – Where the orders intentionally make no provision for the children to spend time or communicate with the father – Any and all outstanding applications dismissed.

FAMILY LAW – PARENTING – Parental responsibility – Where the applicant father sought an order for equal shared parental responsibility – Family violence – Where the presumption of equal shared parental responsibility does not apply – Where the children will continue to live with the mother – Where the mother shall have sole parental responsibility for the children.

Evidence Act 1995 (Cth) s 178
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 60DA, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 102NA, 114AB

Jardine & Sackville [2019] FamCA 458
Jardine & Sackville (No. 2) [2019] FamCA 1036
M v M (1988) 166 CLR 69; [1988] HCA 68
U v U (2002) 211 CLR 238; [2002] HCA 36

APPLICANT:

Mr Jardine

RESPONDENT:

Ms Sackville

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

FILE NUMBER:

NCC

1949

2018

DATE DELIVERED:

20 May 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle (via video)

JUDGMENT OF:

Justice Austin

HEARING DATE:

28, 29 and 30 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B. Taylor

SOLICITOR FOR THE APPLICANT:

Joplin Lawyers

COUNSEL FOR THE RESPONDENT:

Mr A. Givney

SOLICITOR FOR THE RESPONDENT:

McIntosh McPhillamy & Co Legal Services

COUNSEL FOR…

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

AGLC: JARDINE & SACKVILLE [2020] FamCA 346
Case: [2020] FamCA 346
Decision Date: 20 May 2020

CaseChat Overview and Summary

In the matter of *Jardine & Sackville*, Justice Austin of the Family Court of Australia considered an application by the father concerning parenting orders for his two children, aged eight and six. The dispute centred on with whom the children should live and spend time, with the father proposing three alternative bases for orders contingent on findings of unacceptable risk of harm. The mother's consistent position was the father's exclusion from the children's lives, with whom the children currently reside and from whom they are estranged. The Independent Children’s Lawyer and the Family Consultant both supported the mother's proposals.

The court was required to determine the best interests of the children under section 60CC of the *Family Law Act 1975* (Cth), considering factors including the deterioration of the children's relationship with the father, their more meaningful relationships with the mother, and allegations of family violence, child abuse, and neglect. Crucially, the court had to assess the father's history of violence and criminal convictions, and the existence of an apprehended violence order protecting the mother and children from him, to determine if he posed a material risk of harm. The presumption of equal shared parental responsibility was also in question due to family violence.

Justice Austin reasoned that the father posed a material risk of harm to the children, rendering the presumption of equal shared parental responsibility inapplicable. The court found that the children's best interests were served by living with the mother and that supervised contact was not appropriate. Consequently, the court made orders consistent with the mother's and the Independent Children’s Lawyer's proposals, intentionally making no provision for the children to spend time or communicate with the father. The mother was granted sole parental responsibility for the children.

The orders discharged all former orders regarding the children, established the mother's sole parental responsibility, and stipulated that the children shall live with the mother. The mother is to inform the father of the children's school and authorise the provision of school reports at his expense. A Fact Sheet detailing obligations, consequences of contravention, and assistance was attached to the orders. The Independent Children’s Lawyer was discharged upon the determination of any appeal or the expiry of the appeal period, and costs were reserved. All other outstanding applications were dismissed.

Orders

Orders of the court

All former orders in respect of the following children are discharged:

(a) X, born … 2011; and

(b) Y, born … 2013.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

The mother shall inform the father of the school at which the children are enrolled and authorise the principal of the school to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

Costs are reserved for 28 days.

Any and all other outstanding applications are dismissed.

Notations

(A) These orders are consistent with the apprehended violence order made against the father for the protection of the mother and the children by the Local Court of New South Wales at C Town on 10 July 2018, which is in force until 9 July 2020.

(B) These orders intentionally make no provision for the children to spend time or communicate with the father. If and when they do so, upon expiration of the apprehended violence order, will be determined by the mother in the exercise of her sole parental responsibility for the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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