Arnaud & Arnaud - [2021] FedCFamC2F 512

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arnaud & Arnaud [2021] FedCFamC2F 512

File number(s): PAC 3170 of 2021

Judgment of: JUDGE OBRADOVIC

Date of judgment: 9 December 2021

Catchwords: FAMILY LAW – Interim parenting – assessment of risk – allegations of family violence – mental health issues – best interest of children – children to live with father – children to spend significant and substantial time with mother.

Legislation: Family Law Act 1975 (Cth) s.65DAA.

Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156

Division: Division 2 Family Law

Number of paragraphs: 41

Date of hearing: 1 November 2021 (via video link)

Place: Parramatta

Counsel for the Applicant: Ms Haughton

Solicitors for the Applicant: Family Focus

Appearing for the Respondent: Ms Henke

Solicitors for the Respondent: Rafton Family Lawyers

Appearing for the Independent Children’s Lawyer:
Ms Kahlil

Solicitors for the Independent Children’s Lawyer: Laura K Law
ORDERS

PAC 3170 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ARNAUD

Applicant

AND:
MS ARNAUD

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

9 DECEMBER 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The parents shall have equal shared parental responsibility for the children:
(a)W born in 2019;
(b)X born in 2016 ;
(c)Y born in 2013; and
(d)Z born in 2012.

2.The children shall live with the father.
3.The children shall spend time with the mother as follows:
(a)During school term in a two week cycle being:
i.In week 1 from Wednesday after school to Monday before school; and
ii.In week 2 from after school on Thursday to 7pm.

(b)During school holidays:
i.At the end of term 4 in 2021 from the conclusion of school until 4pm on the middle Saturday of the school holiday period;
ii.At the end of terms 1, 2 and 3 in 2022 from the conclusion of school until 4pm on the middle Saturday of the school holiday period; and
iii.At the end of term 4 in 2022 from 4pm on the middle Saturday of the school holiday period until the commencement of school in 2023.

(c)On each of the children’s birthdays for a period of 3 hours as agreed between the parents in writing;
(d)On the mother’s birthday for a period of 3 hours as agreed between the parents in writing;
(e)On the Mother’s Day weekend from 9am on Saturday to 6pm on Sunday; and
(f)At all other times as agreed between the parents in writing.

4.Notwithstanding any other order the father shall spend time with the children:
(a)On each of the children’s birthdays for a period of 3 hours as agreed between the parents in writing;
(b)On the father’s birthday for a period of 3 hours as agreed between the parents in writing;
(c)From 8am to 8pm on 26 December 2021; and
(d)On the Father’s Day weekend from 9am on Saturday to 6pm on Sunday.

5.Unless changeover occurs at the children’s school or day-care and unless the parties agree in writing otherwise,…

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 Arnaud & Arnaud

Details

AGLC: Arnaud & Arnaud [2021] FedCFamC2F 512
Case: [2021] FedCFamC2F 512
Decision Date

CaseChat Overview and Summary

The case of Arnaud and Arnaud involves the parents of four children, Z, Y, X and W, born in 2012, 2013, 2016 and 2019 respectively. The parents separated in June 2020 and have been unable to agree on the care of their children. Both parents have applied for interim orders regarding the children's living arrangements and time spent with each parent. There are serious allegations of family violence between the parties, and the mother has a history of mental health issues. The Court was required to determine the interim parenting arrangements for the children, taking into account their best interests and the relevant legal principles. The Court also had to consider the allegations of family violence and the impact of the mother's mental health on her ability to care for the children.

The Court found that the incident between the mother and Ms B occurred in a more serious manner than described by the mother. The Court found that the mother likely minimised the incident for forensic reasons related to these proceedings. The Court accepted that the mother is no longer in a relationship with Ms B and that the children were not placed at any immediate risk as a result of the incident on 16 November 2020. However, the mother's minimisation of the incident is a factor relevant to the determination of the mother's capacity to meet the children's needs and of the mother's capacity to put the children's needs above her own. The Court found that the mother has a number of vulnerabilities arising from her mental health. It appears that she considers the children to be a protective factor for her. Despite clear evidence of her mental health issues and recommendations she has received for treatment, the mother has not engaged in treatment for her mental health. The evidence is that on 16 November 2020 she attempted to overdose. The mother denies this and says that she "always" takes 4 Neurofen tablets to treat headaches. She denies taking a whole packet of pills or consuming them with alcohol. It is clear though that the mother has reported previous suicide attempts, including cutting her wrists when the parties separated. It does not appear that the mother is taking appropriate steps to address her mental health issues and related vulnerabilities, which may pose a significant risk of harm to the children.

The Court made orders for equal shared parental responsibility for the children. The Court ordered that the children shall live with the father. The Court ordered that the children shall spend significant and substantial time with the mother. The Court ordered that the parties and the children of the relationship attend upon a Court Child Expert/Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report. The Court further ordered that the family report deal with the views expressed by the children the subject of parenting orders sought in this case, the nature of the relationships of the children with each of the children’s parents and with significant other persons, the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent, the likely effect of any changes in the children’s circumstances, the practical difficulty and expense of the children spending time with and communicating with a parent, the capacity of each parent to provide for the needs of the children, the maturity, sex, lifestyle and background of the children and of either of the children’s parents and any other characteristics of the children that the reporter thinks are relevant, each parent’s attitude to the children and to the responsibilities of parenthood, any family violence involving the children or a member of the children’s family, and such other issues as the Court Child Expert/ Family Consultant considers relevant.

Orders