Kelly & Anor and White & Anor - [2014] FamCA 1025

FAMILY COURT OF AUSTRALIA

KELLY AND ANOR & WHITE AND ANOR

[2014] FamCA 1025

FAMILY LAW – CHILDREN – Interim Orders – With whom a child lives - Cultural Issues – Family Violence - Best Interests of the Child – Where applicants are no biological relation to the children – Where applicants were previously respite carers for the children and subsequently foster carers for some periods of time – Where both children have significant medical needs – Where first respondent mother opposed the applicants continued involvement in the children’s lives after they were returned to her care – Where children’s care arrangements subsequently reverted to arrangements which previously prevailed, with them staying with and being cared for by the maternal aunt – Where an updated family report has been prepared – Where family report writer has concerns in relation to neglect of the children whilst in the care of the mother and potential exposure to family violence – Where mother’s solicitor unable to contact her for the past two weeks – Where mother’s overarching instructions oppose the application for the placement of the children with the applicants – Where children have not resided with the mother for a year or so – Where maternal grandfather and maternal aunt support the applicant’s application – Where Court gave considerable weight to s 60CC(3)(h) and 61F, however noted that the primary consideration is the need to protect children from harm and from being exposed to abuse, neglect or family violence – Where Court satisfied on an interim basis that it is in the best interests of the children to live with the applicants.

FAMILY LAW – CHILDREN – Parental Responsibility – Where applicants sought sole parental responsibility – Where history of poor communication or at least and inability to contact the mother – Where Court ordered that the applicants have sole parental responsibility for the children, obliging them to use their best endeavours to consult with the mother in relation to any significant parenting issue affecting the children.

Family Law Act 1975 (Cth) s 60CC, 61F

Donnell v Dovey (2010) FLC 93-428
Re CP (1997) 27 Fam LR 486

APPLICANTS:

Mr Kelly and Mrs Kelly

RESPONDENTS:

Ms White and Mr Jennings

INDEPENDENT CHILDREN’S LAWYER:

Ms Wallace

FILE NUMBER:

TVC

2014

DATE DELIVERED:

3 November 2014

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

3 November 2014

REPRESENTATION

THE APPLICANTS:

In person

SOLICITORS FOR THE RESPONDENTS:

Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd

SOLICITORS FOR THE INDEPENDENT

CHILDEN’S LAWYER:

McDonald & Leong

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Fellows

Orders

The following definitions apply for the purpose of these Orders:

1.1.“The children” means:
1.1.1.J born … 2007; and
1.1.2.X born … 2003;

1.2.“the Mother” means Ms White;
1.3.“the Father” means Mr D;
1.4.“Applicants” means Mr Kelly and Mrs Kelly;
1.5.“the Parties” means the Mother and Applicants; and
1.6.“significant parenting issue affecting the children” means:
1.6.1.Any medical or health matter concerning the children;
1.6.2.Any medical…

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

Case: [2014] FamCA 1025
Decision Date: 3 November 2014

CaseChat Overview and Summary

In the Family Court of Australia, Tree J considered an application by Mr and Mrs Kelly (the applicants) for interim orders concerning the living arrangements and parental responsibility for two children, J and X. The dispute arose after the children, who had significant medical needs and had previously been in the care of the applicants as respite and foster carers, were returned to the care of their mother, Ms White (the first respondent). The mother opposed the applicants' continued involvement in the children's lives.

The court was required to determine, on an interim basis, with whom the children should live and who should hold parental responsibility. Key issues included the children's best interests, particularly in light of concerns raised in an updated family report regarding potential neglect and exposure to family violence while in the mother's care. The court also had to consider the mother's lack of contact with her solicitors and her overarching instructions opposing the application.

Tree J gave considerable weight to the provisions of the *Family Law Act 1975* concerning the best interests of the child, specifically sections 60CC(3)(h) and 61F. However, the court emphasised that the primary consideration was the need to protect the children from harm, abuse, neglect, and family violence. Satisfied that it was in the children's best interests to live with the applicants, the court ordered that the applicants have sole parental responsibility for the children.

Consequently, the court ordered that the children live with the applicants. The applicants were also ordered to use their best endeavours to consult with the mother in relation to any significant parenting issue affecting the children, though they were authorised to consent to necessary medical procedures without the mother's express consent. The children were to spend time with the mother and father at all times as could be agreed by the parties.

Orders

Orders of the court

The following definitions apply for the purpose of these Orders:

1.1. “The children” means:

1.1.1. J born … 2007; and

1.1.2. X born … 2003;

1.2. “the Mother” means Ms White;

1.3. “the Father” means Mr D;

1.4. “Applicants” means Mr Kelly and Mrs Kelly;

1.5. “the Parties” means the Mother and Applicants; and

1.6. “significant parenting issue affecting the children” means:

1.6.1. Any medical or health matter concerning the children;

1.6.2. Any medical or health matter affecting any of the Parties which may affect the ability of that Party to care for the children;

1.6.3. Matters relating to the education of the children;

1.6.4. Disciplinary matters other than of a trivial nature;

1.6.5. Matters concerning the social development and sporting activities of the children;

1.6.6. Matters concerning the religion or faith of the children;

1.6.7. Any change of residence, mobile or home telephone number of any of the Parties within forty-eight (48) hours of such change occurring; and

1.6.8. Generally any matter regarding the child in respect of which any of the Parties should be informed or consulted having regard to the provisions of Part VII of the Family Law Act 1975.

IMPORTANT DECISIONS CONCERNING THE CHILDREN

Until further Order, it is ordered that the Applicants have sole parental responsibility for the children.

That the Applicants shall consult with the Mother, with respect to any significant parenting issues affecting the children, however the Applicants are authorised to consent to any necessary medical procedure without the mother’s expressed consent.

That the children live with the Applicants.

That the children spend time with the Mother and the Father at all times as can be agreed by the Parties.

Medical Treatment of the Children

That each Party shall:

5.1. Advise the other party of any medical emergencies or serious illness affecting the children whilst the children are in their care as soon as practicable after they become aware of such medical emergency or serious illness;

5.2. Supply to the other party full details of doctors and hospitals involved in providing treatment to the children.

These Orders are sufficient authority to all doctors and hospitals involved in providing treatment of the children to provide the Applicants and the Mother and Father with all information about the children.

That the children live with the Applicants.

That the children spend time with the Mother and the Father at all times as can be agreed by the Parties.

Medical Treatment of the Children

10. That each Party shall:

10.1. Advise the other party of any medical emergencies or serious illness affecting the children whilst the children are in their care as soon as practicable after they become aware of such medical emergency or serious illness;

10.2. Supply to the other party full details of doctors and hospitals involved in providing treatment to the children.

11. These Orders are sufficient authority to all doctors and hospitals involved in providing treatment of the children to provide the Applicants and the Mother and Father with all information about the children.

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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