FAMILY COURT OF AUSTRALIA
| JONES & AZARAC | [2012] FamCA 872 |
| FAMILY LAW – CHILDREN – where there are allegations of sexual abuse – where the father is not the biological father of one of the two subject children – where there are issues of alcohol addiction and drug use – where the mother seeks that there be no time between the father his non-biological son – where the father seeks parenting orders in respect of both children – whether orders should be made for time between the father and the non-biological son – consideration of best interests of both children – where orders made that the children live with the mother and the father spend time with both children. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| AIF v AMS (1999) 199 CLR 160 B v B (1993) FLC 92-357 B v B (1988) FLC 91-978 CDJ v VAJ (1998) 197 CLR 172 Donnell & Dovey (2010) 42 Fam LR 559 Goode v Goode (2006) FLC 93-286 Hardie & Capris [2010] FamCA 1046 In The Marriage of N & S (1996) FLC 92-655 M v M (1988) FLC 91-979 Marsden & Winch (No 3) [2007] FamCA 1364 McCoy & Wessex (2007) 38 Fam LR 513 MRR v GR (2010) 240 CLR 461 Mulvany v Lane (2009) FLC 93-404 Napier v Hepburn (2006) FLC 93-303 Neil v Nott (1984) 68 ALJR 509 Partington (aka Bade) v Cade (No 2) (2010) 42 Fam LR 401 Sigley & Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Jones |
| RESPONDENT: | Mr Azarac |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 7420 | of | 2010 |
| DATE DELIVERED: | 18 October 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 14 – 15 March 2012 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Andrews |
| SOLICITOR FOR THE RESPONDENT: | MA Kent & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Selfridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid Queensland |
Orders
IT IS DECLARED THAT the presumption of equal shared parental responsibility is rebutted in the best interests of M (born …2008) (“the child”).
IT IS ORDERED THAT
Parental Responsibility
The mother shall have sole parental responsibility in respect of all “major long-term issues” (as that expression is defined in s 4(1) of the Family Law Act 1975 (Cth) (as amended)) in respect of M, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a) Use her best endeavours to advise the father in writing of the decision intended to be made;
b) Seek the father’s written response in relation thereto;
c) Consider, by reference to the best interests of the children, any such response prior to making any such decision; and,
d) Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of M and…
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- Jones and Azarac [2012] FamCA 872
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CaseChat Overview and Summary
The court was required to determine whether parenting orders for time between the father and his non-biological son should be made, and to consider the best interests of both children in making any orders. The court also had to address the presumption of equal shared parental responsibility and whether it should be rebutted.
Murphy J found that the presumption of equal shared parental responsibility was rebutted in the best interests of the child M. The mother was granted sole parental responsibility for major long-term issues concerning M, subject to a process of consultation with the father. Both parents were granted sole responsibility for day-to-day decisions concerning the children while they were in their respective care. The children were ordered to live with the mother, and specific time arrangements were set out for the father to spend with both children, with conditions attached regarding the father's attendance at CDT testing to monitor alcohol consumption. The court also made orders regarding contact with other individuals and specified changeover arrangements.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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