MOTHER ALLOWED TO RELOCATE HER CHILDREN WHEN THEY WERE DEEMED AT RISK IF UNDER THEIR FATHER’S CARE

Ferras & Eskrick [2019] FamCAFC 216 (1 November 2019)

This is a case wherein the father appealed against the interim orders that allowed the mother to relocate with her children and to have sole parental responsibility for them. The order also suspended the father’s time with his children, except any agreement parties regarding it. 

Facts:

As a background of the case, Mr. Ferras (Father and Appellant) and Ms. Eskrick (Mother and Respondent) agreed that their child “X” would live with his father and would spend time with his mother during school holidays after becoming concerned about “X’s” behavior. However, after spending time with his mother, “X” did not return to his father. Mr. Ferras then learned that Ms. Eskrick and their children relocated to South East Queensland. Mr. Ferras, after that, sought an order for the return of his children to him. During the hearing, Ms. Eskrick did not appear, so the order Mr. Ferras sought was granted. The primary judge ordered Ms. Eskrick to file documents, however, instead of complying, she filed a Response and an affidavit, and a Notice of Risk wherein she asserted that the children were at significant risk of psychological harm in their father’s care, of which the interim order appealed by Mr. Ferras was issued. Mr. Ferras appealed against the interim order on the ground that the trial judge failed to afford him natural justice for not giving him the opportunity to respond to the allegations made by the mother in her late-filed documents, and he sought to adduce further evidence in appeal.

Issue:

Was Mr. Ferras denied procedural fairness?

Held:

(Ainslie-Wallace, Ryan & Aldridge JJ) Yes. Procedural fairness was denied from Mr. Ferras in this case.

In the case Allesch v Maunz (2000) 203 CLR 172 at 184, it was held that it is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.  

Mr. Ferras was not afforded the opportunity to respond to the allegations of family violence and risk against him by Ms. Eskrick. The trial judge’s reasons for acting protectively of the children based on the allegations of Ms. Eskrick. He was denied of procedural fairness when he was not afforded the chance to secure evidence, such as the letter from the Department of Children’s Services stating that they do not believe that the children suffered or will suffer significant harm of risk when and if under Mr. Ferras care, to refute Ms. Eskrick’s allegation.

In view that there was sufficient ground to believe that Mr. Ferras was denied procedural fairness, the appeal sought was allowed, and the order appealed was set aside. 

A parent’s right to be with his or her child should not be curtailed because allegations that are not fully proven true and clear. Mr. Ferras will be denied parental authority and supervision of his children if the claims of Ms. Eskrick, which were broad, unspecific, or specified related to incidents and concerns arising from the past, were the only ones given credence.