Bannerman & Bannerman (No 3) - [2023] FedCFamC2F 969

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bannerman & Bannerman (No 3) [2023] FedCFamC2F 969

File number(s): MLC 3796 of 2022

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 3 August 2023

Catchwords: FAMILY LAW – application for recovery order – where child overheld contrary to court orders – where child to live with the father – where child making serious allegations against the father – where child threatening to harm the father – where mother not facilitating contact between the child and the father – orders for the child to live with the Father – orders for a moratorium of time between the child and the mother – least worst outcome – balance of competing risks to child’s welfare – allegations of “chaotic enmeshment”.

Legislation: Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 69ZL.

Cases cited:
CAO & CAO [2018] FamCAFC 252; (2018) FLC 93-880.

Eaby & Speelman [2015] FamCAFC 104.

Goode and Goode [2006] FamCA 1346, (2006) FLC 93-286.

Isles & Nelissen (2022) FLC 94-092.

Re C & B (Children) (Care Order: Future Harm) 1 F. L. R 811.

Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725.

Division: Division 2 Family Law

Number of paragraphs: 93

Date of hearing: 1 August 2023

Place: Melbourne

Counsel for the Applicant: Mr G. Glezakos

Solicitor for the Applicant: J S Law

Solicitor for the Respondent: Litigant in Person

Counsel for the Independent Children's Lawyer: Ms E. Tiernan

Solicitor for the Independent Children's Lawyer: KS Family Lawyers
ORDERS

MLC 3796 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BANNERMAN

Applicant

AND:
MS BANNERMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

1 AUGUST 2023

THE COURT ORDERS THAT:
1.Until further order, the Father have sole parental responsibility for the child X born in 2008 (“the child”).
2.Until further order (“the moratorium”), the Mother, her servants and/or agents be and are hereby restrained from spending time with or communicating with the child by any means, including mail, telephone, email, text message or social media.
3.The Father do all acts and things to enable the child’s attendance at C School as soon as practicable and attend upon Ms D, treating psychologist.
4.Until further order the child live with the Father AND IT IS DIRECTED that the Father attend upon Court Child Services this day and collect X from Court Child Services.
5.The Mother, her servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and vicinity of 305 William Street, Melbourne VIC 3000 and do not enter further within 500 metres of 305 William Street, Melbourne VIC 3000 now.
6.For the personal protection of MR BANNERMAN born in 1965 and X born in 2008 (collectively referred to as “the protected parties”), until further order the Mother MS BANNERMAN born in 1969 is restrained from:
(a)assaulting, molesting, harassing, stalking, abusing or otherwise interfering with the protected parties;
(b)entering upon or loitering…

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 Bannerman & Bannerman (No 3)

Details

AGLC: Bannerman & Bannerman (No 3) [2023] FedCFamC2F 969
Case: [2023] FedCFamC2F 969
Decision Date

CaseChat Overview and Summary

This case involved an urgent interim application to address the welfare of a child, X, who was caught in a complex family law dispute between his parents, Mr and Ms Bannerman. The application arose from new facts that had emerged since the last court orders, including X not returning to his father’s care as ordered and making alarming threats against his father. The court had to decide whether to order a drastic change in X’s living arrangements and contact with his mother, in light of new evidence and assessments suggesting a “chaotic enmeshment” between X and his mother, and the potential serious harm to X if the status quo was maintained. The court balanced the competing risks to X’s welfare, considering the possibility of serious family violence by the father against the risk of psychological harm from a forced change of circumstances. It found the risk of serious psychological harm to X from remaining in his current circumstances was unacceptable. The court ordered that X live with his father and that his mother not spend any time or communicate with him until further order, and made personal protection orders for the father and X.

Orders