FAMILY LAW – CHILDREN - History of family violence – should there be move for the Father from supervised time to unsupervised time (including overnight time) with children - Should the Father be consulted in relation to major long term decisions FAMILY LAW - COSTS - Independent Children’s Lawyer’s costs
Legislation:
Family Law Act 1975 (Cth) Part VII, ss 60B(2), 60CC, 61DA, 61DAB, 65D, 65DAC, 68B(1)(c), 117(4)(a)
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BANNISTER
Applicant
AND:
MS KROLL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE TURNBULL
DATE OF ORDER:
1 May 2023
THE COURT ORDERS THAT:
1.Save for the Order appointing the Independent Children’s lawyer, and Orders 4, 5, 6 and 7 of Orders made 19 April 2023, all previous parenting Orders regarding the children X born 2019 and Y born 2020 (“the children”), be discharged.
2.The Mother have sole parental responsibility for the children, and that the Mother advise the Father in writing of any major long-term decision (including significant decisions made about health, religion or education) relating to either or both of the children, within 48 hours of making that decision.
3.The children live with the Mother.
4.Within 7 days (if not already completed) the Father do all things to enrol in a Men’s Behaviour…
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.
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Details
AGLC
Bannister & Kroll [2023] FedCFamC2F 597
Case
[2023] FedCFamC2F 597
Decision Date
CaseChat Overview and Summary
In the matter of Bannister v Kroll, the Federal Circuit and Family Court of Australia (Division 2) considered two primary issues: whether the Father should be consulted regarding major long-term decisions impacting the children, and whether there should be a move from supervised to unsupervised time for the Father with the children. The Court determined that the Mother should have sole parental responsibility and that the Father should be informed of any major long-term decisions but not have a say in them. Regarding the children's time with the Father, the Court found that the children could spend unsupervised time with the Father, conditional upon him completing a Men’s Behaviour Change course, continuing his therapy, and adhering to other specified conditions. The Court balanced the children’s need for a relationship with their father against the unacceptable risk posed by the Father's past behaviour. The Court also dismissed the Independent Children's Lawyer's application for costs against the Mother, finding that it would cause her financial hardship, but ordered the Father to pay half of the Independent Children's Lawyer's costs.