Keneally and Keough & Anor - [2019] FamCA 658

FAMILY COURT OF AUSTRALIA

KENEALLY & KEOUGH AND ANOR

[2019] FamCA 658

FAMILY LAW – CHILDREN – Best interests – altruistic arrangement – where the respondents gave their biological child to the applicant at birth by agreement – where the applicant and the child are not related – where the applicant is seeking sole parental responsibility and that the child live with her – where the respondents support the applicant’s application – where the orders sought by the applicant are in the child’s best interests – order that the applicant have sole parental responsibility and the child live with the applicant.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 64B, 65C, 65G

Bernieres and Anor & Dhopaland Anor [2015] FamCA 736; (2015) 53 Fam LR 547
Mankiewicz and Anor & Swallow and Anor (2016) FLC 93-725; [2016] FamCAFC 153

APPLICANT:

Ms Keneally

FIRST RESPONDENT:

Ms Keough

SECOND RESPONDENT:

Mr Surrey

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

13829

2018

DATE DELIVERED:

13 September 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

29 April 2019

REPRESENTATION

SOLICITOR APPEARING FOR THE

APPLICANT:

Ms Jefford

SOLICITOR APPEARING FOR THE

RESPONDENTS:

Ms Zetzer

SOLICITOR FOR THE RESPONDENTS:

Family Law Life

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the applicant, Ms Keneally have sole parental responsibility for the child X born … 2017.
That X live with the applicant.
That X spend time and communicate with the respondents, Ms Keough and Mr Surrey, including Y, as may be agreed between the applicant and the respondents.
That the applicant be at liberty to obtain a passport (or renew a passport as the case may be) for X and each of the respondents do all acts and things necessary to enable the applicant to obtain a passport in X’s name.
That the applicant together with the child X, born … 2017 be at liberty to travel outside the Commonwealth of Australia.
That the appointment of the Independent Children’s Lawyer be discharged.
That all extant applications be otherwise dismissed.
That pursuant to ss 62B and 65DA(2) of the Family law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keneally & Keough and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order…

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: [2019] FamCA 658
Decision Date: 13 September 2019

CaseChat Overview and Summary

In the matter of *Keneally and Keough & Anor*, heard before Johns J, the dispute concerned parental responsibility and living arrangements for a child, X. The applicant, Ms Keneally, sought orders regarding the child's residence and time spent with the respondents, Ms Keough and Mr Surrey.

The court was required to determine the most appropriate orders for parental responsibility, the child's residence, and the extent of time the child would spend with each parent. Additionally, the court considered issues relating to the child's travel and the appointment of an Independent Children's Lawyer.

Johns J made orders granting Ms Keneally sole parental responsibility for child X, with X to live with the applicant. The respondents were to have time and communicate with X as agreed between the parties. The court also permitted Ms Keneally to obtain a passport for X and for the child to travel outside of Australia. The appointment of the Independent Children's Lawyer was discharged, and all extant applications were dismissed. The orders included particulars of obligations and consequences of contravention pursuant to sections 62B and 65DA(2) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

That the applicant, Ms Keneally have sole parental responsibility for the child X born … 2017.

That X live with the applicant.

That X spend time and communicate with the respondents, Ms Keough and Mr Surrey, including Y, as may be agreed between the applicant and the respondents.

That the applicant be at liberty to obtain a passport (or renew a passport as the case may be) for X and each of the respondents do all acts and things necessary to enable the applicant to obtain a passport in X’s name.

That the applicant together with the child X, born … 2017 be at liberty to travel outside the Commonwealth of Australia.

That the appointment of the Independent Children’s Lawyer be discharged.

That all extant applications be otherwise dismissed.

That pursuant to ss 62B and 65DA(2) of the Family law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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