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Munroe and Watson and Ors

Munroe and Watson and Ors

Case [2014] FamCA 112 7 March 2014

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FAMILY COURT OF AUSTRALIA

MUNROE & WATSON AND ORS

[2014] FamCA 112

FAMILY LAW – CHILDREN – Where the children were removed from the care of the mother by the Department of Family and Community Services – Where the elder child has been living with the Applicant father after having been removed from the mother’s care – Where the two younger children were removed at birth and had been placed with authorised carers – Whether the maternal grandparents are appropriate long-term carers for the two younger children – Whether the mother and the Second Respondent father pose an unacceptable risk of harm to the children – Best interests of the children – If the mother and/or Second Respondent father pose a risk of harm, what (if any) time should they spend with the children and on what (if any) conditions

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of the trial by the mother – Consideration of the history of the litigation – Best interests of the children in respect of any further delay – Application dismissed

Children & Young Persons (Care and Protection) Act 1988 (NSW)
Crimes Act 1900 (NSW) s 93X
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Rules 2004 (Cth) r 11.02

Department of Family and Community Services NSW & Munroe and Ors [2013] FamCA 981
Farmer and Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
M v M [1988] HCA 68
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT:

Mr Munroe

1st RESPONDENT:

Ms A Watson

2nd RESPONDENT:

Mr Mullow

3rd RESPONDENT:

Ms V Watson

4th RESPONDENT:

Mr Watson

INTERVENER:

Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

FILE NUMBER:

PAC

4413

2011

DATE DELIVERED:

7 March 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

24 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Leis

SOLICITOR FOR THE APPLICANT:

Forshaw Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Moore

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor's Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Sloane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

Orders

Parental Responsibility

That the Applicant father Mr Munroe (“the Applicant father”) have sole parental responsibility for the child D, born … December 2007, (“D”).
That the Minister for Family and Community Services have sole parental responsibility for the children B, born … September 2012, (“B”) and C, born … September 2013, (“C”) for a period of twelve (12) months from the date of these Orders.
That at the expiration of the period of twelve (12) months from the date of these Orders, the maternal grandparents, Mr Watson and Ms V Watson, (“the maternal grandparents”) have sole parental responsibility for the children B and C.

Live With

That D live with the Applicant father.
That B and C live…

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 Munroe and Watson and Ors

Details

AGLC: Munroe and Watson and Ors [2014] FamCA 112
Case: [2014] FamCA 112
Decision Date: 7 March 2014

CaseChat Overview and Summary

This matter concerned applications relating to the parental responsibility and living arrangements for three children, D, B, and C. The applicant father, Mr Munroe, sought sole parental responsibility for D, while the Minister for Family and Community Services sought sole parental responsibility for B and C. The respondents included the mother, Ms A Watson, and the second respondent father, Mr Mullow, as well as the maternal grandparents, Mr Watson and Ms V Watson.

The court was required to determine the most appropriate orders for parental responsibility and the children's living arrangements, considering the welfare of D, B, and C. Additionally, the court had to consider the terms of any injunctions necessary for the protection of the parties and the children, particularly in light of the circumstances leading to the proceedings. The court also had to address outstanding applications made by the parties.

Foster J made orders for parental responsibility and living arrangements that reflected a considered approach to the children's best interests. The applicant father was granted sole parental responsibility for D, with D to live with him. The Minister for Family and Community Services was granted sole parental responsibility for B and C for a period of twelve months, after which the maternal grandparents would assume sole parental responsibility for them, with B and C to live with the maternal grandparents. The court also made detailed orders regarding the children spending time with their parents, including supervised time for the mother and second respondent father with B and C, and supervised time for the mother with D, with specific restrictions on the presence of the second respondent father. Crucially, the court issued injunctions restraining the mother and second respondent father from making derogatory remarks about other parties in the children's presence and from attending at or approaching the residences or places of education or care of the children, except as permitted by the orders, with the power of arrest attaching to these injunctions. All outstanding applications were dismissed.

Orders

Orders of the court

Parental Responsibility

That the Applicant father Mr Munroe (“the Applicant father”) have sole parental responsibility for the child D, born … December 2007, (“D”).

That the Minister for Family and Community Services have sole parental responsibility for the children B, born … September 2012, (“B”) and C, born … September 2013, (“C”) for a period of twelve (12) months from the date of these Orders.

That at the expiration of the period of twelve (12) months from the date of these Orders, the maternal grandparents, Mr Watson and Ms V Watson, (“the maternal grandparents”) have sole parental responsibility for the children B and C.

Live With

That D live with the Applicant father.

That B and C live with the maternal grandparents.

Spend Time With

That the child D spend time with the First Respondent mother, Ms A Watson, (“the mother”) on a minimum of six (6) occasions each year supervised by an agency nominated by or delegate of the Director-General of the Department of Family and Community Services or his nominee until the child attains 12 years of age, and thereafter, until he attains the age of 18 years supervised by a person approved by the Applicant father, Mr Munroe, provided always that such time shall not be in the presence of the Second Respondent, Mr Mullow, (“the Second Respondent father”).

That the mother be permitted to attend on occasions significant to the welfare of the child D being occasions relating to his education, extra-curricular activities, religious education, health or other occasion significant to his welfare where the attendance of either or both parents is to be reasonably expected provided always that on such occasions the Applicant father or his nominee is in attendance and the mother is not accompanied by the Second Respondent father.

That the children B and C spend time with the mother and the Second Respondent father supervised by an agency nominated by or delegate of the Director-General of the Department of Family and Community Services or his nominee on a minimum of six (6) occasions each year.

That the mother be responsible for any reasonable costs associated with her spending supervised time with B and C.

10.

That the Second Respondent father be responsible for any reasonable costs associated with him spending supervised time with B and C.

11.

That the Applicant father and the maternal grandparents use their best endeavours to facilitate the children D, B and C spending time together as agreed between the Applicant father and the maternal grandparents on a minimum of twelve (12) occasions each year.

Injunctions

12.

That the parties are each restrained from making critical or derogatory remarks about the other parties and members of their household in the presence or within the hearing of D, B and C and that the parties shall ensure that no other person makes critical or derogatory remarks about the other parties and members of their household in the presence or within the hearing of D, B and C.

13.

That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the mother, Ms A Watson, and the Second Respondent father, Mr Mullow, are restrained from attending at, entering upon, approaching or remaining on the residence or place of employment of the Applicant father, Mr Munroe, and the maternal grandparents, Mr Watson and Ms V Watson, except strictly in accordance with the Orders made herein and that this Order is made for the personal protection of the Applicant father and the maternal grandparents and is an order to which the power of arrest without warrant attaches pursuant to section 68C of the Act.

14.

That pursuant to section 68B of the Act the mother, Ms A Watson, and the Second Respondent father, Mr Mullow, are restrained from approaching, contacting, communicating with or being in the presence of and from attending at, entering upon, approaching or remaining on the residence or place of education or care of the children D, B and C, except strictly in accordance with the Orders made herein and that this Order is made for the personal protection of the said children and is an order to which the power of arrest without warrant attaches pursuant to section 68C of the Act.

Procedural

15.

All outstanding applications and cross-applications be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Munroe and Watson and Ors [2014] FamCA 112

Most Recent Citation

Seever and Sutor [2015] FCCA 3500

Cases citing this decision · 1 of 1 shown

SEEVER & SUTOR
[2015] FCCA 3500 Para 9

…ountry omitted) between 11 July and 22 August 2014. There is no suggestion that the children were adversely affected by his evidence. [37] [37] [2014] FamCA 112 at [7]-[9]…

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Cases cited in this decision · 11 of 11 shown

Jarrah & Fadel
[2014] FamCAFC 14 Para 2

…In Jarrah & Fadel [2014] FamCAFC 14, the Full Court of the Family Court of Australia refused to allow the husband a further adjournment of the final hearing. Ainslie-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said…
Department of Family and Community Services NSW and Munroe and Ors
[2013] FamCA 981 Para 1

…judgment was reserved. Reasons for Judgment were delivered on 16 December 2013 (see Department of Family and Community Services NSW & Munroe and Ors [2013] FamCA 981).…
Farmer & Rogers
[2010] FamCAFC 253 Para 6

…In the earlier decision of Farmer and Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said: 197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from…
MRR v GR
[2010] HCA 4

…2006) FLC 93-286 Jarrah & Fadel [2014] FamCAFC 14 M v M [1988] HCA 68 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 MRR v GRR (2010) 240 CLR 461…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 2

…he husband a further adjournment of the final hearing. Ainslie-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]: … delay and costs are undesirable and that delay has deleterious effect not only upon the par…
Mazorski & Albright
[2007] FamCA 520 Para 1

…In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]: What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synon…
U v U
[2002] HCA 36 Para 6

…lds (1973) 1 ALR 318 per Mason J at 322-325; M v M [1988] HCA 68; (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76; U v U [2002] HCA 36; (2002-03) 211 CLR 238 per Hayne J at 285 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 per Kirby J at 1332.…
M v M
[1988] HCA 68 Para 6

…the purpose for which the jurisdiction is conferred. (citations omitted) See also Reynolds v Reynolds (1973) 1 ALR 318 per Mason J at 322-325; M v M [1988] HCA 68; (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76; U v U [2002] HCA 36; (2002-03) 211 CLR 238 per Hayne J at 285 and JRN…
J v Lieschke
[1987] HCA 4 Para 6

…ngs is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457: If an unqualified application of the principles of natural justice would frustrate the purpose for which t…
(1987) 1 WLR 1461
(1987) 1 WLR 1461 Para 3

…at p 75,545), a ‘real risk’ ( Leveque v Leveque (1983) 54 BCLR 164 at p 167), and an ‘unacceptable risk’ (In Re G (a minor) (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the…
Leveque v Leveque
1 WLR 1461 Para 3

…R 765 at pp 770 and 771 respectively), ‘a real possibility’ ( B and B [ Access] (1986) FLC 91-758 at p 75,545), a ‘real risk’ ( Leveque v Leveque (1983) 54 BCLR 164 at p 167), and an ‘unacceptable risk’ (In Re G (a minor) (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the courts are striving for a greater…

Legislation cited in this decision · 5

Family Law Act 1975 (Cth)
60B, 60CA, 60CC, 61DA, 65DAA 6 mentions (from Para 2)
Crimes Act 1900 (ACT)
93X 2 mentions (from Para 10)
Family Law Rules 2004 (Cth)
11.02 2 mentions (from Para 8)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
1 mention (from Para 7)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
1 mention (from Para 7)