Runyon and Runyon and Ors - [2019] FCCA 143

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUNYON & RUNYON & ORS

[2019] FCCA 143

Catchwords:
FAMILY LAW – Parenting – incapacity of Mother and Father – competing applications as to where four children should live – parental responsibility – separation of siblings – applications by Maternal Cousin and Maternal Grandmother – assessment of capacity to promote emotional and psychological needs of the children – final orders made.

Legislation:

Children, Youth and Families Act 2005 (Vic), s.38
Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3), 61DA and 67Z
Federal Circuit Court Rules 2001 (Cth), rr.1.03 and 13.03C

Federal Court of Australia Act 1976 (Cth), s.137M

Cases cited:

Allesch v Maunz [2000] HCA 40
Irwin v Irwin [2016] FCA 156

Applicant:

MS RUNYON

First Respondent:

MS B RUNYON

Second Respondent:

MR HOOKE

Third Respondent:

MS A RUNYON

File Number:

MLC 8998 of 2016

Judgment of:

Judge Stewart

Hearing dates:

15, 16 17, 18 and 19 October 2018 and

13 November 2018

Date of Last Submission:

13 November 2018

Delivered at:

Melbourne

Delivered on:

25 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Testart

Solicitors for the Applicant:

Faram Ritchie Davies

The First Respondent appeared in person on 13 November 2018.

Counsel for the Second Respondent:

Mr McLeod

Solicitors for the Second Respondent:

Joe Mamone Lawyers

Counsel for the Third Respondent:

Mr Kanarev

Solicitors for the Third Respondents:

Ella Thompson Legal

Counsel for the Independent Children's Lawyer:

Mr Nicholson

Solicitors for the Independent Children's Lawyer:

Sofra Solicitors

ORDERS

All extant parenting orders be and are hereby discharged.
The Maternal Grandmother have sole parental responsibility for the children:-
(a)W born … 2004 (“W”);
(b)X born … 2005 (“X”);
(c)Y born … 2007 (“Y”); and
(d)Z born … 2010 (“Z”);
(“the children”), PROVIDED ALWAYS THAT the Maternal Grandmother keep the Mother and the Father informed of significant long term decisions that she makes in relation to the child and actively seeks the Mother’s and the Father’s input on such issues.
For the purpose of order 2 hereof:-
(a)before any such long term decisions are made in respect of the child:-
(i)the Maternal Grandmother shall advise the Mother and the Father by email of her proposal relating to the children;
(ii)if the Mother and/or the Father wishes to comment on the Maternal Grandmother’s proposal (or if the Mother and/or the Father has any proposal they wish to make relating to the children on this issue) they shall, within seven (7) days after the date of the Maternal Grandmother’s email, advise the Maternal Grandmother by one email each (to the email address from which the Maternal Grandmother sent her communication) of their views;
(iii)upon receipt of any comment or proposal by the Mother and/or the Father, the Maternal Grandmother shall give consideration to their respective views;
(iv)after the Maternal Grandmother has considered the Mother’s and/or the Father’s comments, she shall make a decision and advise the Mother and the Father by email or SMS text message of the outcome immediately after making that decision;…

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 Runyon and Runyon and Ors

Details

AGLC: Runyon and Runyon and Ors [2019] FCCA 143
Case: [2019] FCCA 143
Decision Date: 25 January 2019

CaseChat Overview and Summary

In the matter of *Runyon and Runyon*, Judge Stewart of the Family Court of Australia considered competing applications concerning the living arrangements and parental responsibility for four children. The applications were brought by the Mother and Father, who were found to have an incapacity to care for the children, as well as by the Maternal Cousin and the Maternal Grandmother. The central dispute revolved around where the children should live and how their emotional and psychological needs could best be promoted, with a particular concern for the potential separation of siblings.

The court was required to determine the most appropriate parenting orders for the children, assessing the capacity of each applicant to provide for their welfare. Key issues included the allocation of parental responsibility, the establishment of living arrangements, and the terms of any time the children would spend with their parents. The court also had to consider the potential impact of any proposed orders on the sibling group and ensure that the children's best interests were paramount in its decision-making.

Judge Stewart reasoned that the Mother and Father lacked the capacity to adequately care for the children, necessitating orders that placed the children's primary care with a third party. Applying the principles of the *Family Law Act 1975* (Cth), the court focused on the children's best interests, including their need for stability and the promotion of their emotional and psychological development. The court found that the Maternal Grandmother was best placed to provide this care.

Consequently, all extant parenting orders were discharged. The Maternal Grandmother was granted sole parental responsibility for the four children, with orders specifying that the children live with her. The orders also detailed a process for the Maternal Grandmother to consult with the Mother and Father on significant long-term decisions, and outlined specific time arrangements for the children to spend with their Mother and Father. The Maternal Cousin was also required to complete parenting courses and was granted specific time with the children. Injunctions were put in place to prevent denigration of parties and discussion of proceedings in the children's presence. The Mother and Father were granted liberty to apply to vary the orders after twelve months, subject to specific conditions including completion of parenting courses and provision of hair follicle test results.

Orders

Orders of the court

All extant parenting orders be and are hereby discharged.

The Maternal Grandmother have sole parental responsibility for the children:-

(a) W born … 2004 (“W”);

(b) X born … 2005 (“X”);

(d) Z born … 2010 (“Z”);

(“the children”), PROVIDED ALWAYS THAT the Maternal Grandmother keep the Mother and the Father informed of significant long term decisions that she makes in relation to the child and actively seeks the Mother’s and the Father’s input on such issues.

For the purpose of order 2 hereof:-

(a) before any such long term decisions are made in respect of the child:-

(i) the Maternal Grandmother shall advise the Mother and the Father by email of her proposal relating to the children;

(ii) if the Mother and/or the Father wishes to comment on the Maternal Grandmother’s proposal (or if the Mother and/or the Father has any proposal they wish to make relating to the children on this issue) they shall, within seven (7) days after the date of the Maternal Grandmother’s email, advise the Maternal Grandmother by one email each (to the email address from which the Maternal Grandmother sent her communication) of their views;

(iii) upon receipt of any comment or proposal by the Mother and/or the Father, the Maternal Grandmother shall give consideration to their respective views;

(iv) after the Maternal Grandmother has considered the Mother’s and/or the Father’s comments, she shall make a decision and advise the Mother and the Father by email or SMS text message of the outcome immediately after making that decision; and

(v) if the Mother and/or the Father do not respond by email as provided in order 3(a)(ii) hereof, the Maternal Grandmother shall be entitled to presume that the Mother and/or the Father does not wish to be involved and she may decide the issue.

The children live with Maternal Grandmother and for this purpose the Maternal Cousin shall deliver X, Y and Z to the Maternal Grandmother’s residence by 12.00 noon on 26 January 2019.

The children spend time with the Mother by agreement between the Mother and the Maternal Grandmother on the following conditions:-

(a) such time not include any overnight time; and

(b) the Maternal Grandmother supervises such time.

The Father spend time with the children from 1.00pm until 5.00pm each alternate Saturday commencing 2 February 2019, with the Father to collect the children from the home of the Maternal Grandmother (or such other place nominated by the Maternal Grandmother) at the commencement of time and return the children to the home of the Maternal Grandmother (or such other place nominated by the Maternal Grandmother) at the conclusion of time.

The Maternal Cousin complete a ‘Tuning into Kids’ course and a ‘Tuning into Teens’ course (information in relation to both courses can be found at http://www.tuningintokids.org.au/) and providing evidence to the Maternal Grandmother of her completion of those courses within six months.

The Maternal Cousin spend time with the children as follows:-

(a) from 9.00am until 5.00pm on one day during the Term 1, 2 and 3 school term holidays, such day to nominated by the Maternal Grandmother in writing by 4.00pm on the last day of school term for Z, and failing such nomination to take place on the middle Sunday of the said holiday period;

(b) from 9.00am until 5.00pm on two days during the long summer holiday period, such days to nominated by the Maternal Grandmother in writing by 4.00pm on the last day of school term for Z, and failing such nomination to take place on 28 December and 20 January;

(c) such further and other time as may be agreed between the Maternal Grandmother and the Maternal Cousin from time to time.

Notwithstanding order 3 hereof, the Maternal Grandmother be permitted to enrol the children, or any of them, in any school of her choosing in 2019.

10.

The Maternal Grandmother:

(a) keep the Mother and the Father advised at all times of the current residential address and telephone number of the children and advise the Mother and the Father of any change thereto within seven (7) days of such change;

(b) advise the Mother and the Father immediately in the event that the children or either of them suffers any serious illness or injury;

(c) authorise any medical practitioner upon which the children or either of them may attend from time to time, to communicate with the Mother and the Father in respect to the child’s medical condition and/or requirements.

(d) authorise all schools at which the children or either of them may attend, from time to time, to:

(i) provide the Mother and the Father, at the expense of the Mother or the Father respectively, copies of all school reports, school notices and school photographs in relation to the children;

(ii) communicate with the Mother and the Father, either by telephone, in writing or by personal attendance, in respect to the children’s progress at her school;

(iii) allow the Mother and the Father to attend all school function to which parents are normally invited;

subject to any school policy in relation thereto.

11.

The Mother and the Father shall:-

(a) keep the Maternal Grandmother advised at all times of their current residential address and telephone number and advise the Maternal Grandmother of any change thereto within seven (7) days of such change;

(b) advise the Maternal Grandmother immediately in the event that the children or either of them suffers serious illness or injury;

(d) authorise any medical practitioner upon which the children or either of them may attend from time to time, to communicate with the Maternal Grandmother in respect to the child’s medical condition and/or requirements.

12.

The Maternal Grandmother, Mother, the Father and the Maternal Cousin, their respective servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other parties or any member of his/her household in the presence or hearing of the children or either of them or from permitting any other person so to do;

(b) discussing the proceedings with or in the presence or hearing of the children or either of them or permitting any other person so to do.

13.

The Mother and the Father are at liberty to apply to vary these orders so that they may spend further time with the children, provided that:

(a) such Application is not made within twelve months of these Orders; and

(b) the Mother or the Father files, under cover of affidavit and contemporaneously with their respective Initiating Application, evidence of the following:-

(i) his/her enrolment in and completion of an accredited course in parenting effectiveness and providing a certificate of completion for same; and

(ii) a hair follicle test undertaken no more than fourteen (14) days prior to the filing of the Initiating Application.

14.

The Mother, the Father and the Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:-

(a) the Principal or delegate of the Principal of the school attended from time to time by the children or either of them;

(b) any Medical Practitioner and/or allied health professional attending upon the child, the Mother, the Father or any other child of either parent; and

15.

The Independent Children’s Lawyer be discharged.

16.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out the Factsheet attached and these particulars are included in these orders.

17.

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

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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