Antonas & Melku - [2023] FedCFamC2F 716

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Antonas & Melku [2023] FedCFamC2F 716

File number(s): DGC 1308 of 2015

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 16 June 2023

Catchwords: FAMILY LAW – final parenting orders – where previous final parenting orders were made – where mother seeks sole parental responsibility – where father seeks equal shared parental responsibility – where mother seeks that the child spend time with the father in accordance with the child’s wishes – where father seeks a gradual increase in time between child and father – where no time between child and father for several years – where father not agreeable to any professionally supervised time – where findings of family violence made.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 4, 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAC

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Fox v Percy (2003) 214 CLR 118

Division: Division 2 Family Law

Number of paragraphs: 163

Date of hearing: 27, 28, 29 March and 20 April 2023

Place: Melbourne

Counsel for the Applicant: Mr V. Peters

Solicitor for the Applicant: Clements Family Law

Counsel for the Respondent: Ms R. Dunlop

Solicitor for the Respondent: Higgins Legal

Counsel for the Independent Children's Lawyer: Ms M. Stavrakakas

Solicitor for the Independent Children's Lawyer: Mark Macdiarmid Family Law Specialist
ORDERS

DGC 1308 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MELKU

Father

AND:
MS ANTONAS

Mother

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

16 June 2023

THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
2.The child live with the Mother.

AND THE COURT ORDERS THAT:
3.The Mother shall have sole parental responsibility for the child X born in 2010 (‘the child’) AND:
(a)the Mother will keep the Father advised of the child’s progress including but not limited to matters of the child’s health and education;
(b)the Father may communicate with the Mother via email only no more than each three months about any concerns or suggestions he wishes to make for the progress and wellbeing of the child; and
(c)if the Father’s communication is courteous and in accordance with these orders, the Mother shall acknowledge the communication and have regard to the matters as are raised by the Father, but the Mother shall be the person to make the final determination or decision and shall promptly inform the Father of that decision.

4.The child shall spend time with the Father as agreed in writing by email between the parents and failing agreement as determined by the Mother having regard to the child’s expressed views.
5.Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with either parent by electronic means at any reasonable time when she is in the other parent’s care.
6.Within seven days, the Mother shall provide the Father with a forwarding address which may include a PO Box and…

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 Antonas & Melku

Details

AGLC: Antonas & Melku [2023] FedCFamC2F 716
Case: [2023] FedCFamC2F 716
Decision Date

CaseChat Overview and Summary

The case before the Court was Antonas & Melku, a final parenting matter concerning X, a 13-year-old girl. The father sought to reintroduce time between himself and X, while the mother sought that X spend time with the father, on a final basis, in accordance with X's wishes. The father alleged that X's strong wish was to not spend any time, or to communicate, with him because of the mother's influence. The mother alleged that X's strong wish was to not spend any time, or to communicate, with the father because of the father's anger, violence, and treatment of the mother. The court had to determine the living arrangements for X and whether there should be a personal protection order against the father. The court found that X did have a relationship with her father, and that the relationship was at times an affectionate one. However, the court found that the father's anger and violence towards the mother, as well as the Balcony Incident, had caused X distress and confusion. The court found that the mother had a warm, close, and loving relationship with X, and that X had been in the mother's primary care since birth. The court found that the father had had extended periods of time away from X, and that X had not spent substantial and significant time with the father since the Balcony Incident. The court found that there were practical difficulties in X spending time with the father, and that the father lacked the ability to provide for X's emotional needs. The court found that it was not in X's best interests to commence spending time with the father in the fashion proposed by the father, whether unsupervised or supervised by family members. The court found that the mother had good reason to fear the father's anger and that the mother needed the personal protection of an injunction restraining the father as she had sought. The court found that it was in X's best interests for the mother to have sole parental responsibility for major long-term decisions about X's welfare. The court made orders for the mother to have sole parental responsibility for X, for X to live with the mother, and for X to spend time with the father as agreed in writing by email between the parents and failing agreement as determined by the mother having regard to X's expressed views. The court made a personal protection order for the father to be restrained from attempting to locate the mother and/or child, going to, entering upon or remaining within 200 metres of any place where the mother and/or child live, work, attend school, attend sporting events or extracurricular activities, and posting on Facebook, Instagram or any other form of social media platform in relation to the mother and/or child.

Orders