KEATON & MAHONEY - [2012] FamCA 658

FAMILY COURT OF AUSTRALIA

KEATON & MAHONEY

[2012] FamCA 658

FAMILY LAW – CHILDREN – family violence – best interests of the children – where priority is given to the safety and protection of the children against family violence – where the father was found to be constantly abusive towards the mother and children – where the children were exposed to family violence throughout the parties’ relationship and following separation – where injunctions were made restraining the parties from permitting the children to spend time with the father – where the mother has sole parental responsibility – where parenting orders only made provision for written communication between the children and father once every three (3) months – where children’s residence is not disclosed to the father – where there were family violence orders in place for the protection of the mother and children against the father – where convictions were recorded against the father for breach of those apprehended domestic violence orders

FAMILY LAW – CHILDREN – scope of jurisdiction to make parenting orders – the Court has no power to compel parties to do any act or thing independent of their parental responsibilities and their care of the children – where the Independent Children’s Lawyer and mother sought orders regarding attendance at therapeutic counselling

FAMILY LAW – JURISDICTION – power of the Court to restrain the institution of future proceedings – where the Court declined to make such an order

FAMILY LAW – PRACTICE AND PROCEDURE – undefended hearing – where the father discontinued the whole of his case – where the orders proposed by the mother and Independent Children’s Lawyer were aligned with the recommendations of the Family Consultant and the father was not deprived of procedural fairness

Evidence Act (Cth) ss 140, 160
Family Law Act 1975 (Cth) ss 21, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA 65DAA, 65DAC, 65DAE, 65LA, 68B, 118

Allesch v Maunz (2000) 203 CLR 172
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Marriage of L & T (1999) 25 Fam LR 590
Marriage of Paskandy (2005) 33 Fam LR 509
McCall v Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Northern Territory of Australia v GPAO (1999) 196 CLR 553
Vlug v Poulos (1997) FLC 92-778
Williams v Spautz (1992) 174 CLR 509

APPLICANT:

Mr Keaton

RESPONDENT:

Mr Mahoney

INDEPENDENT CHILDREN’S LAWYER:

Catherine Henry Partners

FILE NUMBER:

NCC

2388

2011

DATE DELIVERED:

10 August 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

6 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr T. Bates

SOLICITOR FOR THE RESPONDENT:

Peter Hamilton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr S. Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Catherine Henry Partners

Orders

All former orders relating to the following children are discharged:
(a)       R, born … July 2001;
(b)       L, born … March 2005;
(c)       T, born ……

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 KEATON & MAHONEY

Details

AGLC: KEATON & MAHONEY [2012] FamCA 658
Case: [2012] FamCA 658
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Keaton & Mahoney concerned parenting orders for five children. The dispute arose from allegations of significant family violence perpetrated by the father, Mr. Keaton, towards the mother, Mrs. Mahoney, and the children. The proceedings were initiated by the father, but he subsequently discontinued his case and failed to appear at the final hearing. The mother, with the support of the Independent Children’s Lawyer and the Family Consultant, sought orders that would largely remove the father from the children's lives due to the violence.

The court was required to determine the appropriate parenting orders in circumstances where family violence had been established. Specifically, the court had to consider the paramountcy of the children's safety and protection against family violence, as well as the scope of its jurisdiction to make parenting orders, particularly concerning therapeutic counselling. The court also considered its power to restrain the institution of future proceedings and whether the father had been afforded procedural fairness despite his withdrawal from the proceedings.

The court's reasoning was heavily influenced by the evidence of family violence, including apprehended domestic violence orders and convictions against the father for breaching those orders. The court applied the principles outlined in the *Family Law Act 1975* (Cth), particularly the mandate to consider the child's best interests as the paramount consideration (ss 60CA, 65AA) and the criteria for determining those interests (s 60CC). The presumption of equal shared parental responsibility under s 61DA was rebutted due to the evidence of family violence. The court found that the father's voluntary withdrawal from the proceedings did not amount to a denial of procedural fairness, as he had been afforded the opportunity to participate. The court aligned its decision with the recommendations of the Family Consultant and the joint proposal of the mother and Independent Children’s Lawyer, prioritising the safety and protection of the children.

The court ordered that all former parenting orders be discharged. The mother was granted sole parental responsibility for the children, and the children were to live with her. The parties were restrained from permitting the children to spend any time with the father. The father was restrained from approaching within 100 metres of the mother's residence or any school attended by the children. Communication between the father and children was limited to written correspondence, such as letters, cards, or gifts, no more frequently than once every three months, with provisions for the mother to facilitate this communication and for the children to send their own communications to the father. The mother was also restrained from denigrating the father in the presence of the children and from permitting corporal punishment. The Independent Children’s Lawyer was discharged upon the expiration of the appeal period, and costs were reserved.

Orders