Thomas & Anor & Franklin - [2013] FamCA 618

FAMILY COURT OF AUSTRALIA

THOMAS & ANOR & FRANKLIN & ANOR

[2013] FamCA 618

FAMILY LAW – PRACTICE AND PROCEDURE – De novo hearing – CHILDREN – Application by non-parents – Foster parents – Where the child has been reunified with his mother – CHILD ABUSE – Where the child was historically a victim of child abuse – Neglect – Whether there is unacceptable risk for the child to live with the mother – Where the child is returned to live with the foster parents – Where the child is to spend time with his mother.

Family Law Act 1975 (Cth) s60B, s60C, s60CA, s60CC(2), s60CC (3), s61DA, s64B, s64C, s65C(c), s65DAA,

Aldridge & Keaton [2009] FamCAFC 229.

Donnell & Dovey (2010) FLC 93-428.

1st APPLICANT:	Ms Thomas
2nd APPLICANT:	Mr Thomas
1st RESPONDENT:	Ms Franklin
2nd RESPONDENT:	Mr O
FILE NUMBER:	BRC	2356	of	2013
DATE DELIVERED:	23 August 2013
PLACE DELIVERED:	Brisbane
PLACE HEARD:	Brisbane
JUDGMENT OF:	Hogan J
HEARING DATE:	5 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANTS:	Mr Jordan
SOLICITOR FOR THE APPLICANTS:	Honeychurch Lawyers
COUNSEL FOR THE 1ST RESPONDENT:	Mr Tucker
SOLICITOR FOR THE 1ST RESPONDENT:	Carroll Fairon Solicitors
FOR THE 2ND RESPONDENT:	No appearance

it is ordered until further order

That all previous Orders be discharged.
That the child B, born … 2010 live with the Applicants.
This Order is authority for Child Dispute Services, Level 3 Harry Gibbs Commonwealth Law Courts Brisbane, to deliver the child, R born … 2010, into the care of the Applicants, Ms Thomas and or Mr Thomas.
That the Applicants jointly have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that they shall, prior to making the decision about any such issue:
(a)use their best endeavours to advise the mother in writing of the decision intended to be made;
(b)seek her written response in relation thereto;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)advise the mother in writing as soon as reasonably practicable of ultimate decision.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while he in is his or her care.
That the child shall spend time and communicate with the mother, at all times as agreed between the parties and failing agreement as follows:
(a) From 9 am Saturday until 5.00pm Saturday each week;
(b) By telephone at all reasonable times.
That the party into whose care the child is going shall collect the child from an agreed meeting point close to the residence of the other party at the commencement of the period of time the child is to spend with that party.
That the mother do all things and take all steps necessary to ensure that Mr W does not attend at or be present…

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 Thomas & Anor & Franklin

Details

AGLC: Thomas & Anor & Franklin [2013] FamCA 618
Case: [2013] FamCA 618
Decision Date: 23 August 2013

CaseChat Overview and Summary

The matter of *Thomas & Anor & Franklin* concerned an application before Hogan J in the Family Court of Australia. The applicants, identified as foster parents, sought orders concerning a child who had previously been a victim of child abuse and neglect. The central dispute revolved around the risk posed to the child should they be returned to the care of their mother, with whom the child had recently been reunified.

Hogan J was required to determine whether there was an unacceptable risk to the child living with the mother, considering the historical findings of abuse and neglect. The court also had to consider the appropriate arrangements for the child's living situation and the extent to which the child should spend time with their mother, in light of the reunification that had already occurred.

In reaching a determination, Hogan J applied principles of child welfare and risk assessment. The court considered the evidence presented regarding the mother's capacity to provide a safe environment and the ongoing needs of the child. The judgment reflected a careful balancing of the child's safety and wellbeing with the importance of maintaining a relationship with the birth parent, where appropriate and safe. The court ultimately ordered that the child was to return to live with the foster parents, while also making provision for the child to spend time with the mother.

Orders