Randell and Randell and Anor - [2018] FCCA 2668

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDELL & RANDELL & ANOR

[2018] FCCA 2668

Catchwords:
FAMILY LAW – Parenting proceeding – three children subject of the proceeding – respondents are parents of two elder children – applicant and first respondent parents of youngest child – eldest child estranged from biological parents – eldest child seventeen years old – issue whether parental responsibility for eldest child be shared or whether applicant should have sole parental responsibility – family report prepared – psychiatric reports of applicant and first respondent prepared – history of dysfunction that has affected the children – need to protect children from harm – contested intervention order proceedings on foot between eldest child and her parents – eldest child wishes to live with applicant – presumption that it is in the child’s best interests for parents to have equal shared parental responsibility rebutted – applicant to have sole parental responsibility – sole parental responsibility conditional upon parents being advised and afforded an opportunity to provide input.

Legislation:

Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61C, 61D, 61DA, 61DAB, 64B, 65AA, 65D

Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Blaze & Grady (2015) 54 Fam LR 172

CDJ v VAJ (No 2) (1998) 197 CLR 172
Collu v Rinaldo [2010] 10 FamCAFC 53
Cooke & Morton [2018] FamCAFC 9

Ellison & Karnchanit [2012] FamCA 602

KAM v MJR (1998) 24 Fam LR 656

Kulat & Azzarudin [2018] FamCA 22
Mason & Mason [2013] FamCA 424
Morton & Berry (2014) FLC 93-613
Norbis v Norbis (1986) 161 CLR 513

Re Evelyn (1998) 23 Fam LR 53

Reid & Lynch (2010) FLC 93-448

Rice v Miller (1993) 16 Fam LR 970

Smith & Smith (1994) FLC 92-488

Applicant:

MR RANDELL

First Respondent:

MS RANDELL

Second Respondent:

MR KARDOS

File Number:

MLC 10186 of 2017

Judgment of:

Judge A Kelly

Hearing date:

12 September 2018

Date of Last Submission:

13 September 2018

Delivered at:

Melbourne

Orders pronounced:

13 September 2018

Delivered on:

21 September 2018

REPRESENTATION

Counsel for the Applicant:

Ms Agresta

Solicitors for the Applicant:

Barbayannis Lawyers Pty Ltd

Counsel for the First Respondent:

Mr Horsfall

Solicitors for the First Respondent:

Knight Family Lawyers

The Second Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Ms Elleray

Solicitors for the Independent Children's Lawyer:

Cathleen Corridon And Associates

ORDERS

Subject to paragraph 2 of this Order, the applicant have sole parental responsibility for the child [X] born on 2001 ([X]).
The applicant’s exercise of parental responsibility pursuant to paragraph 1 of this Order shall remain subject to the following:
(a)the applicant will advise the first and second respondents in writing of the details and particulars of any decision that may need to be made or that he intends to make concerning the [X] respecting her education or health and will invite a written response or input from the first and second respondents within 14 days.
(b)upon either or both of the…

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: [2018] FCCA 2668
Decision Date: 21 September 2018

CaseChat Overview and Summary

In the Family Court of Australia, Judge A Kelly considered a parenting proceeding concerning three children. The dispute involved the eldest child, who was seventeen years old and estranged from her biological parents, the first and second respondents. The applicant, who was the parent of the youngest child, sought sole parental responsibility for the eldest child, while the respondents were the parents of the two elder children.

The central legal issue before the court was whether parental responsibility for the eldest child should be shared between the parents or whether the applicant should be granted sole parental responsibility. This determination required the court to consider the best interests of the child, particularly in light of a history of dysfunction affecting the children and the need to protect them from harm. The court also had to consider contested intervention order proceedings between the eldest child and her parents, and the eldest child's expressed wish to live with the applicant.

The court found that the presumption that equal shared parental responsibility is in a child's best interests was rebutted in this case. This conclusion was informed by family and psychiatric reports, as well as the specific circumstances of the eldest child's estrangement and the ongoing conflict between her and her parents. The court ultimately ordered that the applicant have sole parental responsibility for the eldest child, subject to conditions designed to ensure the parents are advised of and afforded an opportunity to provide input on decisions concerning the child's education and health. The applicant is required to invite written responses within 14 days, consider any input received, and then advise the parents in writing of the ultimate decision within 7 days.

Orders

Orders of the court

Subject to paragraph 2 of this Order, the applicant have sole parental responsibility for the child [X] born on 2001 ([X]).

The applicant’s exercise of parental responsibility pursuant to paragraph 1 of this Order shall remain subject to the following:

(a) the applicant will advise the first and second respondents in writing of the details and particulars of any decision that may need to be made or that he intends to make concerning the [X] respecting her education or health and will invite a written response or input from the first and second respondents within 14 days.

(b) upon either or both of the [X]’s parents making a written response or providing input pursuant to and within the time prescribed by paragraph 2(a) of this Order, the applicant will, in coming to his ultimate decision, consider the written responses or input received from the first and/or second respondents as to what is in the best interests of the child.

(c) upon reaching his ultimate decision respecting the matters addressed by this Order, the applicant will within 7 days advise the first and second respondent in writing of the decision so made.

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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