Child Protection

Parsons and ANOR & MASSON

From the Family Court of Australia:

FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia v GPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued.

Michelle McMahon represented the first and second appellants.

Reasons for Judgement can be found here.

Wickham & Arnett [2018] FCCA 80

From the Federal Circuit Court of Australia:

FAMILY LAW – Parenting – Twins aged 7 – one twin currently spending three hours per fortnight with the father; the other refusing to do so – father seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays – mother seeking a no time order – where the mother alleges that the father perpetrated severe coercive and controlling family violence during and after the parties relationship which included hitting and pushing her, grabbing her by the throat, spitting on her, verbally abusing and threatening to kill her, damaging property, and taking or threatening to take the children in order to coerce her into agreeing to his demands including a demand to drop an ADVO application – where the mother agreed to the father spending time with the children for three years after the final separation but ended time soon after the children told her that the father had assaulted his current partner – where the father denies assaulting his current partner – where the father made some limited admissions about being violent to the mother but otherwise denied the mother’s allegations – where the father blamed his behaviour on the mother allegedly having mental health issues – where the court accepts the mother’s evidence and considers that there is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care - Independent Children’s Lawyer agreeing but proposing an order for long term supervised time – no benefit to the children in such an order – order made that the children spend no time with and have no communication with the father.

Michelle McMahon appeared for the Independent Children's Lawyer.

CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105

APPEAL – application for leave to appeal – parens patriae jurisdiction of Supreme Court unsuccessfully invoked – earlier interim care order made by Children’s Court – no available statutory appeal from that order –change in circumstances since application for leave filed – final findings made by Children’s Court as to need for protection – no utility in allowing leave to appeal

CHILD WELFARE – interim care order by Children’s Court – parens patriae jurisdiction of Supreme Court invoked – whether Children’s Court proper forum to determine best interests of children

Children and Young Persons (Care and Protection) Act 1998(NSW), ss 9(1)43(1), 457172247
Civil Procedure Act 2005 (NSW), ss 5671
Court Suppression & Non-publication Orders Act 2010 (NSW), s 7
Supreme Court Act 1970 (NSW), ss 69101

CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 (24 April 2015)