MURRAY & FINN - [2018] FamCA 195

FAMILY COURT OF AUSTRALIA

MURRAY & FINN

[2018] FamCA 195

FAMILY LAW – CHILDREN – With whom a child spends time – Where the children require protection from the psychological harm caused by the father’s family violence – Where the children are at risk of harm due to neglect in the father’s care – Where the father’s lack of insight impairs his parenting capacity – Concluded no protective measure short of indefinite supervision would suffice to curtail the risk of harm to the children – Ordered the mother shall have sole parental responsibility – Ordered the children shall live with the mother and spend supervised time with the father at a contact centre until June 2018 and thereafter the supervision be provided by the paternal grandmother for one night every two months – Ordered the mother is restrained from changing the children’s surname

FAMILY LAW – INJUNCTIONS – Hague Convention – Where the mother is from Country D – Where Country D is a State signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction – Ordered that the mother, but not the father, may remove the children from Australia

Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D, 61DA, 65Y
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32(3)

Betros & Betros [2017] FamCAFC 90
Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
M v B [2001] FamCA 894
Marriage of B & B (1993) FLC 92-357
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
Newlands v Newlands (2007) 37 Fam LR 103
Reynolds & Sherman [2015] FamCAFC 128

APPLICANT:

Ms Murray

RESPONDENT:

Mr Finn

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Gosford

FILE NUMBER:

NCC

2749

2016

DATE DELIVERED:

29 March 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:	Newcastle
JUDGMENT OF:	Austin J

HEARING DATE:

28 February 2018 & 1, 2 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mooney

SOLICITOR FOR THE APPLICANT:

Resolve Family Law

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Graham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Gosford

Orders

All former orders in respect of the following children are discharged:
(a)B, born … 2013; and
(b)C, born … 2016.
The parties are restrained from allowing the children to be known by any surname other than “Finn”.
Subject to compliance with Order 2, the mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father as follows:
(a)Up to and including Friday 29 June 2018, subject to:
(i)Compliance with Order 6; and
(ii)The father ensuring the attendance of the paternal grandmother in his company at the supervised venue;
on Friday each week for not less than two hours.
(b)Thereafter, subject…

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 MURRAY & FINN

Details

AGLC: MURRAY & FINN [2018] FamCA 195
Case: [2018] FamCA 195
Decision Date: 29 March 2018

CaseChat Overview and Summary

In the matter of *Murray & Finn*, Austin J of the Family Court of Australia considered the parenting arrangements for two children, B and C. The dispute concerned the children's welfare and protection from harm, particularly in light of the father's family violence, neglect, and lack of insight into his parenting capacity. The court also addressed the potential international relocation of the children, given the mother's country of origin is a signatory to the Hague Convention.

The primary legal issues before the court were whether the children required protection from psychological harm and risk of harm due to neglect, and what protective measures were necessary. The court was required to determine the appropriate allocation of parental responsibility, the living arrangements for the children, and the nature and supervision of any time the children would spend with the father. Additionally, the court considered the mother's ability to remove the children from Australia, in the context of the Hague Convention.

Austin J concluded that no protective measure short of indefinite supervision would suffice to curtail the risk of harm to the children. The court found that the father's family violence and lack of insight impaired his parenting capacity, and that the children were at risk of harm due to neglect in his care. Consequently, the mother was granted sole parental responsibility for major long-term issues, and the children were ordered to live with her. Time spent with the father was to be supervised, initially by professional services until June 2018, and thereafter by the paternal grandmother under specific conditions. The court also granted the mother permission to remove the children from Australia, subject to certain conditions related to the Hague Convention.

Orders

Orders of the court

All former orders in respect of the following children are discharged:

(a) B, born … 2013; and

(b) C, born … 2016.

The parties are restrained from allowing the children to be known by any surname other than “Finn”.

Subject to compliance with Order 2, the mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

The children shall live with the mother.

The parties shall take all reasonable steps to ensure the children spend time with the father as follows:

(a) Up to and including Friday 29 June 2018, subject to:

(i) Compliance with Order 6; and

(ii) The father ensuring the attendance of the paternal grandmother in his company at the supervised venue;

on Friday each week for not less than two hours.

(b) Thereafter, subject to:

(i) The father filing and serving by 29 June 2018 an undertaking signed by the paternal grandmother in the following terms:

I am willing and able to supervise the time spent by the children with the father under the orders of the Family Court of Australia.

I have read the information pamphlet entitled “Deciding whether you should help with Supervision” published online by NSW Legal Aid.

I fully understand the duties and responsibilities of a supervisor. I am prepared to and shall act accordingly.

I understand that any breach of my undertaking may be regarded as contempt of the Court, which could render me liable to prosecution and punishment.

and

(ii) The paternal grandmother’s faithful compliance with the terms of her undertaking;

from 9.00 am on the second Saturday until 5.00 pm on the second Sunday of the months of August, October, December, February, April, and June each year.

For the purpose of implementing Order 5(a):

(a) The time spent by the children with the father shall be supervised by staff of “Relationships Australia”, staff of “Big Brown House”, or some other person or entity nominated by one of those organisations or persons, in that order of priority (“the supervisor”).

(b) In the event of disagreement between the parties, the mother shall do all such things necessary to engage the supervisor.

(c) The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

(d) The time to be spent by the children with the father shall commence at the time designated by the supervisor.

(e) The venue at which the time is to be spent by the children with the father shall be designated by the supervisor.

(f) The father shall pay any costs due to the supervisor.

(g) The mother shall cause the delivery of the children to and the collection of the children from the supervisor at the commencement and conclusion of the time spent by the children with the father.

(h) The mother, father, and paternal grandmother shall comply with all reasonable requests and directions of the supervisor.

(i) Leave is granted to the mother and father to provide to the supervisor a sealed copy of these orders.

For the purpose of implementing Order 5(b), the parties shall cause the children to be exchanged between them or their nominees at the McDonalds Restaurant, D Town, NSW.

Upon expiration of the apprehended violence order made against the father by the Local Court of NSW at E Town on 1 February 2018, pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

(a) The mother’s residence;

(b) Any day-care, pre-school, or school attended by either child; and

Subject to compliance with Order 5, pursuant to s 65Y(2)(b) of the Family Law Act, the mother is permitted to take the children outside the Commonwealth of Australia.

10.

The parties are restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

11.

The parties shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

12.

The mother shall authorise and request the principal of any school or pre-school attended by the children to provide to the father, at his expense, copies of all reports and photograph order forms relating to the children.

13.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current mobile telephone number.

14.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

15.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

16.

Costs are reserved for 28 days.

17.

Any and all outstanding applications are dismissed.

Notations

(A) Australia and Country D are both State parties to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”).

(B) The children are habitually resident in Australia, in the State of NSW.

(D) These orders allow the mother to temporarily remove the children from their State of habitual residence for the purposes of holidays.

(E) Permanent retention of the children away from Australia without the permission of an Australian Court or the father’s consent in writing will constitute wrongful retention of the children within the meaning of the 1980 Convention.

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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