Richards and Brooks and Anor - [2014] FamCA 673

FAMILY COURT OF AUSTRALIA

RICHARDS & BROOKS AND ANOR

[2014] FamCA 673

FAMILY LAW – CHILDREN – Undefended hearing – Where the mother failed to participate in the hearing – Where the paternal grandmother and maternal grandmother have the care of the subject children – Non-parents – Where the grandmothers have reached agreement as to the future care of the subject children – Where the father of one of the children lives with the paternal grandmother and spends time with the child in the household – Where the father of the other child is deceased – Where the mother presents an unquantifiable risk of harm in respect of drug-use, lifestyle and unstable accommodation – Where the children’s views are to be given some weight – Where the grandparent with whom each of the children lives is to have sole parental responsibility for that child – Where the children are to spend some time together

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65D, 117
Family Law Rules 2004 (Cth) r 16.07

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Ms Richards

FIRST RESPONDENT:

Ms B Brooks

SECOND RESPONDENT:

Ms C Brooks

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Campbelltown

FILE NUMBER:

PAC

2332

2011

DATE DELIVERED:

19 August 2014

PLACE DELIVERED:

Suburb L

PLACE HEARD:

Suburb L

JUDGMENT OF:

Foster J

HEARING DATE:

29 & 31 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Greenaway

SOLICITOR FOR THE APPLICANT:

Thurlow Fisher Lawyers & Consultants

THE FIRST RESPONDENT:

Self-represented Litigant

THE SECOND RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Campbelltown

Orders

That the paternal grandmother, Ms Richards, have sole parental responsibility for the child D, born … 2003 (“D”).
That the child D live with the paternal grandmother.
That the maternal grandmother, Ms B Brooks, have sole parental responsibility for the child E (also known as E), born … 2000 (“E”).
That the child E live with the maternal grandmother.
That the paternal grandmother and maternal grandmother do all things necessary so as to reasonably ensure that the children E and D spend supervised time with each other once per month and at such other times as agreed between the paternal and maternal grandmother, and that such time be supervised by either the paternal grandmother or the maternal grandmother and no other third party.
That the paternal grandmother do all things necessary and sign all necessary documents so as to facilitate the child D continuing counselling and therapy with Prof F, or such other therapist or health professional as he may recommend, and that she obey all reasonable directions of such family therapist or psychologist…

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 Richards and Brooks and Anor

Details

AGLC: Richards and Brooks and Anor [2014] FamCA 673
Case: [2014] FamCA 673
Decision Date: 19 August 2014

CaseChat Overview and Summary

This matter concerned an application before Foster J concerning the welfare of two children, D and E. The parties involved were the paternal grandmother, Ms Richards, and the maternal grandmother, Ms B Brooks, who were seeking orders regarding the parental responsibility and living arrangements for the children. The mother, Ms C Brooks, was also a party to the proceedings, and an Independent Children’s Lawyer had been appointed.

The court was required to determine a range of issues concerning the children's care, including who should have parental responsibility, where the children should live, and the extent of contact, if any, the mother should have with them. Further issues included the arrangements for the children to spend time with each other, their access to therapeutic support, and their ability to travel internationally. The court also had to consider an application for costs made by the Independent Children’s Lawyer.

In reaching its decision, Foster J applied the paramount consideration of the best interests of the children. The orders made reflect a determination that the paternal grandmother should have sole parental responsibility and the primary residence for child D, while the maternal grandmother should have sole parental responsibility and the primary residence for child E. The court also made specific provisions for the children to spend supervised time together, for their ongoing therapeutic treatment, and for their international travel. Crucially, the mother was significantly restricted from contact with the children, with any contact to be determined by the children’s therapists.

The court ordered that the paternal grandmother have sole parental responsibility and the primary residence for child D, and the maternal grandmother have sole parental responsibility and the primary residence for child E. The children were to spend supervised time together monthly. The mother was to have no contact with the children except as recommended by their therapists. Both children were permitted to travel internationally, with their respective grandmothers authorised to apply for passports. The application for costs by the Independent Children’s Lawyer was dismissed.

Orders

Orders of the court

That the paternal grandmother, Ms Richards, have sole parental responsibility for the child D, born … 2003 (“D”).

That the child D live with the paternal grandmother.

That the maternal grandmother, Ms B Brooks, have sole parental responsibility for the child E (also known as E), born … 2000 (“E”).

That the child E live with the maternal grandmother.

That the paternal grandmother and maternal grandmother do all things necessary so as to reasonably ensure that the children E and D spend supervised time with each other once per month and at such other times as agreed between the paternal and maternal grandmother, and that such time be supervised by either the paternal grandmother or the maternal grandmother and no other third party.

That the paternal grandmother do all things necessary and sign all necessary documents so as to facilitate the child D continuing counselling and therapy with Prof F, or such other therapist or health professional as he may recommend, and that she obey all reasonable directions of such family therapist or psychologist for the ongoing counselling and treatment of the child D.

That the maternal grandmother do all things necessary and sign all necessary documents so as to facilitate the child E being referred to a family therapist or psychologist for issues arising out of the circumstances of this matter, and that she obey all reasonable directions of such family therapist or psychologist for the ongoing counselling and treatment of the child E, including, if necessary, a referral to any other therapist or health professional and engagement with that health professional.

That the mother, Ms C Brooks, have no contact with the children E and D, save as may be reasonably recommended by the children’s respective therapists or health professionals and on such terms and conditions as may be reasonably recommended by such therapists or health professionals.

That the maternal grandmother be restrained from permitting or allowing the children from coming into contact or spending time with the mother, except in compliance with any recommendations of the children’s therapists or health professionals as provided for above.

10.

That the child D be permitted to travel internationally.

11.

That the paternal grandmother may apply for an Australian passport for the child D, born … 2003, without first obtaining the consent of the father or the mother.

12.

That the child E be permitted to travel internationally.

13.

That the maternal grandmother may apply for an Australian passport for the child E, born … 2000, without first obtaining the consent of the mother.

14.

That the application for costs by the Independent Children’s Lawyer be dismissed.

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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