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Musil and Cullen & Anor

Musil and Cullen & Anor

Case [2017] FamCA 672 1 September 2017

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

MUSIL & CULLEN AND ANOR

[2017] FamCA 672

FAMILY LAW – CHILDREN – Best Interests – Where the applicant is a non-parent – Where the paternal aunt seeks parenting orders – Where the mother and father are in New Zealand – Where the child was born in Australia – Where the child was left in the care of the paternal family by the mother when she returned to New Zealand – Where the parents have disengaged from the proceedings – Where there are concerns as to the parenting capacity of both parents – Where the father has been convicted of sexual abuse of his daughter – Where the mother has had her two older children removed from her care by Child Youth and Family in New Zealand – Where the child was to be removed from the care of the parents by Child Youth and Family if she had been born in New Zealand – Where the paternal aunt has been the primary carer of the child for over 18 months – Where the child identifies the paternal aunt as her mother – Where no concerns are held as to the parenting captivity of the paternal aunt – Orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – Where the father has never participated in the proceedings – Where the mother has only intermittently engaged in the proceedings – Where both parents have disengaged from the proceedings – Where it appropriate for the matter to proceed to undefended hearing.

Family Law Act 1975 (Cth) ss 60B, 60C, 60CA, 60CC, 61DA, 65C, 65DAA, 65Y, 69ZN(7)
Family Law Rules 2004 (Cth) r 16.07

Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Farmer & Rogers [2010] FamCAFC 253
Goode & Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Ms Musil

RESPONDENT:

Ms Cullen

SECOND RESPONDENT:

Mr Dernier

INDEPENDENT CHILDREN’S LAWYER:

Mr Christaki

FILE NUMBER:

PAC

655

2016

DATE DELIVERED:

1 September 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mahony Family Lawyers

FIRST RESPONDENT – SELF-REPRESENTED LITIGANT:

No Appearance

SECOND RESPONDENT – SELF-REPRESENTED LITIGANT:

No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown Family Law

Orders

That the paternal aunt, Ms Musil, shall have sole parental responsibility for B born … 2015 (“the child”).
That the child shall live with the paternal aunt, Ms Musil.
That the child shall spend no time with and shall not communicate with her father, Mr Dernier, and mother, Ms Cullen.
B born … 2015 is permitted to have an Australian travel document and to travel internationally.
The paternal aunt, Ms Musil may…

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 Musil and Cullen & Anor

Details

AGLC: Musil and Cullen & Anor [2017] FamCA 672
Case: [2017] FamCA 672
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the matter of *Musil and Cullen & Anor*, Foster J of the Family Court of Australia considered an application by the paternal aunt, Ms Musil, for parenting orders concerning a child, B. The child was born in Australia, and her mother, Ms Cullen, had left her in the care of the paternal family before returning to New Zealand. Both parents had disengaged from the proceedings, with the father, Mr Dernier, never having participated and the mother only intermittently engaging.

The court was required to determine whether it was appropriate to proceed to an undefended hearing given the parents' lack of participation. Furthermore, the court had to consider the best interests of the child, particularly in light of concerns regarding the parenting capacity of both the mother and the father. These concerns included the father's conviction for sexual abuse of his daughter and the mother's history of having her two older children removed from her care by New Zealand authorities.

Foster J reasoned that it was appropriate to proceed to an undefended hearing due to the parents' persistent disengagement. In assessing the child's best interests, the court noted that the paternal aunt had been the primary carer for over 18 months, the child identified her as her mother, and no concerns were held regarding the aunt's parenting capacity. The court also considered that the child would have been removed from her parents' care by Child Youth and Family services had she been born in New Zealand.

Consequently, the court made orders granting the paternal aunt sole parental responsibility for the child, stipulating that the child live with her and have no contact with her parents. The child was also permitted to obtain an Australian travel document and travel internationally, with the paternal aunt authorised to remove the child from Australia at her discretion. The court further made orders restraining the parents from removing the child from Australia and requested the Australian Federal Police place the child on the Airport Watch List.

Orders

Orders of the court

That the paternal aunt, Ms Musil, shall have sole parental responsibility for B born … 2015 (“the child”).

That the child shall live with the paternal aunt, Ms Musil.

That the child shall spend no time with and shall not communicate with her father, Mr Dernier, and mother, Ms Cullen.

B born … 2015 is permitted to have an Australian travel document and to travel internationally.

The paternal aunt, Ms Musil may apply for an Australian travel document (passport) for B born … 2015 without first obtaining the consent of the child’s mother and father.

Pursuant to section 65Y of the Family Law Act 1975 (Cth) the paternal aunt Ms Musil shall be authorised and entitled to remove the child from the Commonwealth of Australia for the purpose of travel at her discretion.

That the First Respondent mother, Ms Cullen born … 1988, and the Second Respondent Father, Mr Dernier born … 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or attempting to cause or permitting or attempting to permit the removal of the child, B born … 2015, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List and maintain the child’s name on the Watch List until the Court orders its removal or until 18 April 2033.

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

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

Musil and Cullen & Anor [2017] FamCA 672

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Cases cited in this decision · 12 of 12 shown

Jarrah & Fadel
[2014] FamCAFC 14 Para 2

…s pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High…
Yamada & Cain
[2013] FamCAFC 64 Para 11

…The Full Court in Yamada & Cain [2013] FamCAFC 64 said: 19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions d…
Valentine & Lacerra and Anor
[2013] FamCAFC 53 Para 10

…is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]: … there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order b…
Farmer & Rogers
[2010] FamCAFC 253 Para 7

…In the earlier decision of Farmer & 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 ot…
Donnell & Dovey
[2010] FamCAFC 15 Para 8

…This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescr…
Aldridge & Keaton
[2009] FamCAFC 229 Para 8

…This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescri…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27

…Aldridge & Keaton [2009] FamCAFC 229 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Donnell & Dovey [2010] FamCAFC 15 Farmer & Rogers [2010] FamCAFC 253 Goode & Goode [2006] FamCA 1346 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Potts & Bims [2007] FamCA 394 Valentine & Lace…
Mazorski & Albright
[2007] FamCA 520 Para 1

…In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed: [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 synonym for…
Potts & Bims
[2007] FamCA 394 Para 8

…ent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining…
Goode & Goode
[2006] FamCA 1346

…Australia Ltd v Australian National University (2009) 239 CLR 175 Donnell & Dovey [2010] FamCAFC 15 Farmer & Rogers [2010] FamCAFC 253 Goode & Goode [2006] FamCA 1346 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Potts & Bims [2007] FamCA 394 Valentine & Lace…
J v Lieschke
[1987] HCA 4 Para 7

…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…
McCall & Clark
[2009] FAMCAFC 92 Para 2

…In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said: … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ens…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
60B, 60C, 60CA, 60CC, 61DA, 65C, 65DAA,... 10 mentions (from Para 6)
Family Law Rules 2004 (Cth)
16.07 2 mentions (from Para 1)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
1 mention (from Para 8)