Jones and Azarac - [2012] FamCA 872

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

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…

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 Jones and Azarac

Details

AGLC: Jones and Azarac [2012] FamCA 872
Case: [2012] FamCA 872
Decision Date

CaseChat Overview and Summary

This case involved an application before the Family Court of Australia concerning parenting orders for two children, M and K. The parties were Ms Jones (the applicant mother) and Mr Azarac (the respondent father). The dispute encompassed allegations of sexual abuse, the father's non-biological relationship with one of the children, and issues surrounding the father's alcohol and drug use. The mother sought no time between the father and his non-biological son, while the father sought parenting orders for both children.

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