Karl & Karl - [2020] FamCA 703

FAMILY COURT OF AUSTRALIA

KARL & KARL AND ANOR

[2020] FamCA 703

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where appropriate the matter proceed on an undefended basis – Where the applicant is a non-parent – Where consideration of applicable principles – Where orders made providing the maternal grandmother with sole parental responsibility – Where orders made for the child to live with the maternal grandmother and spend time with the mother and father as agreed between them and the maternal grandmother.

FAMILY LAW – INJUNCTIONS – Order restraining the mother and father from taking the children from the maternal grandmother’s care – Order restraining the mother and father from approaching or entering upon any place of education, day care/preschool that any of the children may attend and from any place of residence at which the children or the maternal grandmother may reside and from contacting the maternal grandmother or the children by any means save and except for the purposes of arranging time to be spent with the children – Order made restraining the mother from bringing the children into contact with her current partner.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Potts & Bims [2007] FamCA
Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Ms Karl

FIRST RESPONDENT:

Ms C Karl

SECOND RESPONDENT:

Mr Newlin

FILE NUMBER:

PAC

3661

2019

DATE DELIVERED:

26 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

20 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms McCleary of Legal Aid NSW Parramatta Family Law

FIRST RESPONDENT – SELF‑REPRESENTED LITIGANT:

No appearance

SECOND RESPONDENT – SELF‑REPRESENTED LITIGANT:

No appearance

Orders Made On 20 July 2020

Upon Noting There Is No Appearance By Or On Behalf Of The Respondent Mother or the Respondent Father, It Is Ordered That

The application for final parenting orders by the Applicant maternal grandmother Ms Karl proceed on an undefended basis.
The maternal grandmother, Ms Karl, have sole parental responsibility for the subject children, X born … 2013, Y born … 2015 and Z born … 2017.
The said children live with the maternal grandmother.
The said children spend time with the Respondent mother and/or Respondent father as agreed in writing such writing to include SMS or email communication between the maternal grandmother and the mother and/or the father.
The mother and father be restrained from removing or attempting to remove the said children from the care of the maternal grandmother except as agreed in…

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 Karl & Karl

Details

AGLC: Karl & Karl [2020] FamCA 703
Case: [2020] FamCA 703
Decision Date: 26 August 2020

CaseChat Overview and Summary

The matter of *Karl & Karl* concerned an application before Foster J in the Family Court of Australia. The applicant, who was not a parent of the children, sought orders for parental responsibility and for the children to live with them. The hearing proceeded on an undefended basis, meaning the respondent parents did not participate or contest the application.

The court was required to determine the best interests of the children in circumstances where a non-parent was seeking sole parental responsibility. This involved considering the applicable legal principles governing child welfare and parental responsibility, particularly when a parent is not seeking to retain that responsibility. Additionally, the court considered the appropriateness of making injunctive orders to protect the children and the applicant.

Foster J applied the paramount principle that the best interests of the child are the sole consideration. Having determined that the matter could appropriately proceed on an undefended basis, the court made orders granting the maternal grandmother sole parental responsibility for the children. The children were ordered to live with the maternal grandmother, with provisions for them to spend time with the mother and father as agreed between them and the maternal grandmother. Furthermore, injunctive orders were made restraining the mother and father from removing the children from the maternal grandmother's care, from attending the children's places of education or residence, and limiting their contact with the maternal grandmother and children to arrangements for time spent with the children. An additional order restrained the mother from bringing the children into contact with her current partner.

Orders