SEARSON & MANAGAN - [2019] FCCA 3950

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEARSON & MANAGAN

[2019] FCCA 3950

Catchwords:
FAMILY LAW – Parenting – future care arrangements for five children – specially fixed five-day hearing not to proceed - public policy elements deemed to apply - where children exposed to disadvantage and neglect – where children previously removed from Mother’s care – where Mother’s home found to be squalid and unfit for the children – where care of the children has been deficient and disadvantageous – complex history of Department of Communities & Justice involvement – where four of the subject children have special needs –where some investment of parental responsibility with Minister of Department of Communities & Justice necessary – where eldest child has historically been responsible for raising younger siblings to a large extent – where children describe family violence perpetrated by the Mother – significant weight to be placed on children’s views – subject children exposed to significant neglect.

Legislation:

Family Law Act 1975 (Cth), ss.61F; 69ZK.
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss.43; 45

Cases cited:

Harris & Caladine (1991) 172 CLR 84

Ras Behari Lal & The King-Emperor (1993) 1 TLR 50
Smith v Western Australia [2001] FCA 19
Harrison & Woollard (1995) FLC 92-598
R & R: Children’s Wishes [2000] FamCA 43

Other sources:
Australian Law Reform Commission, Family Law For the Future – An Inquiry into the Family Law System, Report (2019)
Rares J, ‘Is access to justice a right or a service?’ (2015) 89 Australian Law Journal 777
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Applicant:

MS SEARSON

Respondent:

MR MANAGAN

First Intervener:	DEPARTMENT OF COMMUNITIES & JUSTICE
Second Intervener:	MS HAURA
Third Intervener	MS ANNISSA
File Number:	PAC 4410 of 2017

Judgment of:

Judge Harman

Hearing date:

24 June 2019

Date of Last Submission:

24 June 2019

Delivered at:

Parramatta

Delivered on:

24 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr Fermanis

Solicitors for the Applicant:

Phillip A Wilkins & Associates

The Respondent in person

Counsel for the First Intervener:	Ms Shea
Solicitors for the First Intervener:	Crown Solicitor’s Office

Counsel for the Second Intervener:	Ms Stolier
Solicitors for the Second Intervener:	Kathryn Renshall Lawyers

Counsel for the Third Intervener:	Mr Bateman
Solicitors for the Third Intervener:	Georgia Flynn Solicitor

Counsel for the Independent Children’s Lawyer

Ms Rebeby

Solicitors for the Independent Children’s Lawyer

Shedden & Associates

ORDERS

That Ms Annissa be joined as a party to these proceedings to be described as the third intervener/ paternal grandmother.
The matter is adjourned for call over to 15 November 2019 at 9.30am.
Each party shall file such further Affidavit material as they propose to rely upon by close of business 8 November 2019.
By consent, Orders are made in accordance with the Minute of Order executed by the parties and the Independent…

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: [2019] FCCA 3950
Decision Date: 24 June 2019

CaseChat Overview and Summary

The proceedings involved Ms Annissa, who sought to be joined as a party to the proceedings as the third intervener and paternal grandmother. The court was required to determine whether to grant Ms Annissa's application to intervene in the existing matter.

The court considered the application for joinder and the relevant legal principles governing intervention in family law proceedings. The decision was made by consent of the parties, indicating agreement on the terms of Ms Annissa's participation.

By consent, the court ordered that Ms Annissa be joined as a party to the proceedings, to be described as the third intervener/paternal grandmother. Further, the court made orders in accordance with a Minute of Order executed by the parties and the Independent Children’s Lawyer. The matter was adjourned for call over, and directions were given for the filing of further affidavit material and the provision of a typescript of the orders made.

Orders

Orders of the court

That Ms Annissa be joined as a party to these proceedings to be described as the third intervener/ paternal grandmother.

The matter is adjourned for call over to 15 November 2019 at 9.30am.

Each party shall file such further Affidavit material as they propose to rely upon by close of business 8 November 2019.

By consent, Orders are made in accordance with the Minute of Order executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.

Direct the solicitor for the First Intervener to provide a typescript of the Minute of Orders made today in word format direct to my Associate by email within 7 days of today’s date.

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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