FAMILY COURT OF AUSTRALIA
| TALLANT & KELSEY | [2017] FamCA 210 |
| FAMILY LAW – CHILDREN – Best interests – Whether the proposed parenting orders are in the best interests of the children – Where the father did not file any affidavits and on occasions did not appear during the final hearing – Where the parenting matter was determined on an undefended basis – Where the mother and the Independent Children’s Lawyer agreed on proposed parenting orders – Factual disputes for determination – Whether the father sexually or physically abused the children – Whether the father poses an unacceptable risk of harm to the children – Whether the father is a perpetrator of family violence – Where the Department of Family and Community Services declined to intervene in the proceedings Where the reasons for the Department declining to intervene raise concerns – Where the mother and children are Aboriginal – Where there are concerns of risk of harm to the children in the care of both parents – Where the children have been exposed to family violence perpetrated by the father – Where the children will be better protected from harm in the mother’s care if they spend no time with the father – The mother have sole parental responsibility for the children – The children live with the mother – The children spend no time with the father. | |
| Evidence Act 1995 (Cth) s 140 | |
G & C [2006] FamCA 994
Goode & Goode (200) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Orwell & Watson [2008] FamCAFC 62
Oscar & Delaware; Oscar & Austen [2014] FamCAFC 32
Ruth & Hutton [2011] FamCAFC 99
Secretary of the Department of Health and Human Services & Ray & Males & Ors [2010] FamCAFC 258
Tallant & Kelsey [2015] FamCA 1190
Tallant & Kelsey [2016] FamCA 538
Tallant & Kelsey (No.2) [2016] FamCA 560
| Tallant & Kelsey (No.3) [2016] FamCA 933 W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235 |
| APPLICANT: | Ms Tallant |
| RESPONDENT: | Mr Kelsey |
INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
| FILE NUMBER: | PAC | 3364 | of | 2013 |
| DATE DELIVERED: | 7 April 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 6, 7, 8, 9,10 June 2016, 17 August 2016, and 5 & 7 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McMahon |
| SOLICITOR FOR THE APPLICANT: | Women’s Legal Service NSW |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
That the Consent Orders made on 18 December 2013 are hereby discharged.
That the children of the relationship C born … 2002 and D born … 2011 (“the children”) shall live with the mother.
That…
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- TALLANT & KELSEY [2017] FamCA 210
- Case
- [2017] FamCA 210
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the proposed parenting orders, which included the children living with the mother and having no contact with the father, were in the best interests of the children, as mandated by the *Family Law Act 1975* (Cth). This required the court to consider the various factors outlined in section 60CC of the Act, including the need to protect the children from harm, the family violence orders, the children's exposure to family violence perpetrated by the father, and the capacity of each parent to provide for the children's needs. The court also had to consider the cultural background of the mother and children, who are Aboriginal.
Hannam J applied the principles of the *Family Law Act 1975* (Cth), particularly sections 60B, 60CA, 60CC, 61C, 61DA, 65DAA, and 65DAC, in determining the children's best interests. The court found that the children would be better protected from harm in the mother's care if they had no contact with the father, given the exposure to family violence and the concerns of risk of harm in the care of both parents. The court also applied section 140 of the *Evidence Act 1995* (Cth) in assessing the evidence presented.
The court ordered that the previous consent orders be discharged. The children were to live with the mother, who was granted sole parental responsibility. The father was ordered to have no contact with the children. Further orders were made restraining the mother from using illicit drugs while the children were in her care and from engaging one of the children in counselling regarding past allegations of sexual abuse by the father. The mother was also directed to engage with family support services and counselling, and to ensure the children's regular school attendance. Leave was granted for the ICL to provide a report to treating counsellors, and a copy of the judgment was to be provided to the Department of Family and Community Services legal department. The orders also included a fact sheet detailing obligations and consequences of contravention.
Orders
Orders of the court
1.
That the Consent Orders made on 18 December 2013 are hereby discharged.
2.
That the children of the relationship C born … 2002 and D born … 2011 (“the children”) shall live with the mother.
3.
That the mother has sole parental responsibility of the children.
4.
That the father shall have no contact with the children whether in person, by telephone, by mail or any method of electronic communication.
5.
That the mother is restrained from using illicit drugs while the children are in her care.
6.
That the mother is restrained from engaging the child D in counselling in relation to past allegations that the father sexually abused D.
7.
The mother will do all things required to engage with a family support service and counselling within fourteen (14) days of the recommendation to the mother by the Independent Children’s Lawyer (“ICL”) of such services.
8.
The mother shall do all things necessary to ensure that the children attend school each day and at the required time.
9.
That leave be granted for the ICL to provide Mr R’s report to any treating counsellor in relation to the mother and/or the children.
10.
That the Department of Family and Community Services legal department be provided with a copy of this judgment.
11.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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