Bass & Mandel - [2021] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA
Bass & Mandel [2021] FCCA 2054

File number(s): TVC 420 of 2021

Judgment of: JUDGE BOWREY

Date of judgment: 24 August 2021

Catchwords: FAMILY LAW – parenting – matter proceeded on undefended basis – Father disengaged with proceedings – Mother have sole parental responsibility of the children – significant history of family violence

Legislation:
Family Law Act 1975 (Cth), Part VII, ss 60B, 60CC

Federal Circuit Court Rules 2001 (Cth), rr 13.03A, 13.03B, 13.03C

Cases cited:
Australian Securities Commission & Macleod (1994) 130 ALR 717

Baghti & Baghti [2015] FamCAFC 71

Melton & Hurley [2017] FamCA 346

Narkis & Narkis (No 4) [2017] FamCA 200

Tate & Tate [2000] FamCA 1040

Number of paragraphs: 54

Date of hearing: 20 August 2021

Place: Townsville

Solicitor for the Applicant: Legal Aid Queensland

Respondent: There being no appearance by or on behalf of the Respondent
ORDERS

TVC 420 of 2021

BETWEEN:
MS BASS

Applicant

AND:
MR MANDEL

Respondent

ORDER MADE BY:

JUDGE BOWREY

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:
1.All previous orders regarding the children W, born in 2014, X born in 2015, Y born in 2020 and Z born in 2021 are discharged.
2.The children shall live with the Mother.
3.The Mother shall have sole parental responsibility for making long-term decisions (as that expression is defined in the Family Law Act 1975) with respect to the children.
4.After the Father has provided to the Mother a negative test result following a Hair Follicle Drug test, the children shall spend time with the Father at all times as agreed in writing between the Mother and the Father.
5.The children shall communicate with the Father by telephone or video call at all times as agreed in writing between the Mother and the Father.
6.All outstanding Applications are otherwise dismissed and the case is removed from the Active Pending Cases List.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Bass & Mandel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT DELIVERED EX-TEMPORE
JUDGE BOWREY

This matter came before the court on 20 August 2021.
The applicant Mother is MS BASS. She is 26 years old, having been born in 1995.
Ms Bass was represented by Legal Aid Queensland. Ms Derbyshire appeared for her.
The respondent Father is MR MANDEL. He is 35 years old, having been born in 1986.
The parties have four children namely W, born in 2014, X born in 2015, Y born in 2020 and Z born in 2021.
The children are in the Mother's care.
The present proceedings were commenced by an Initiating Application (Family Law) filed on behalf of the Mother on 29 March 2021. That application sought that final orders be particularised at a later stage.…

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 Bass & Mandel

Details

AGLC: Bass & Mandel [2021] FCCA 2054
Case: [2021] FCCA 2054
Decision Date: 24 August 2021

CaseChat Overview and Summary

In the matter of *Bass & Mandel*, heard before Bowrey J, the dispute concerned parenting orders for four children: W, born in 2014, X born in 2015, Y born in 2020, and Z born in 2021. The applicant was Ms Bass (the Mother) and the respondent was Mr Mandel (the Father).

The court was required to determine the living arrangements for the children and the allocation of parental responsibility. Specifically, the court considered whether to discharge previous orders and make new orders regarding where the children would live, who would have sole parental responsibility for long-term decisions, and the nature and extent of the children's time and communication with the Father.

Bowrey J ordered the discharge of all previous orders concerning the children. The court determined that the children shall live with the Mother and that the Mother shall have sole parental responsibility for making long-term decisions regarding the children, as defined by the *Family Law Act 1975* (Cth). The children are to spend time with the Father only after he provides a negative hair follicle drug test result, and such time is to be agreed in writing between the Mother and Father. Similarly, communication between the children and the Father by telephone or video call is to occur only as agreed in writing by the parties. All outstanding applications were dismissed, and the case was removed from the Active Pending Cases List.

Orders

Orders of the court

TVC 420 of 2021

BETWEEN:

MS BASS

Applicant

AND:

MR MANDEL

Respondent

ORDER MADE BY:

JUDGE BOWREY

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1. All previous orders regarding the children W, born in 2014, X born in 2015, Y born in 2020 and Z born in 2021 are discharged.

2. The children shall live with the Mother.

3. The Mother shall have sole parental responsibility for making long-term decisions (as that expression is defined in the Family Law Act 1975) with respect to the children.

4. After the Father has provided to the Mother a negative test result following a Hair Follicle Drug test, the children shall spend time with the Father at all times as agreed in writing between the Mother and the Father.

5. The children shall communicate with the Father by telephone or video call at all times as agreed in writing between the Mother and the Father.

6. All outstanding Applications are otherwise dismissed and the case is removed from the Active Pending Cases List.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	TVC 420 of 2021
Judgment of:	JUDGE BOWREY
Date of judgment:	24 August 2021
Catchwords:	FAMILY LAW – parenting – matter proceeded on undefended basis – Father disengaged with proceedings – Mother have sole parental responsibility of the children – significant history of family violence
Legislation:	Family Law Act 1975 (Cth), Part VII, ss 60B, 60CC Federal Circuit Court Rules 2001 (Cth), rr 13.03A, 13.03B, 13.03C
Cases cited:	Australian Securities Commission & Macleod (1994) 130 ALR 717 Baghti & Baghti [2015] FamCAFC 71 Melton & Hurley [2017] FamCA 346 Narkis & Narkis (No 4) [2017] FamCA 200 Tate & Tate [2000] FamCA 1040
Number of paragraphs:	54
Date of hearing:	20 August 2021
Place:	Townsville
Solicitor for the Applicant:	Legal Aid Queensland
Respondent:	There being no appearance by or on behalf of the Respondent

ORDER MADE BY:	JUDGE BOWREY
DATE OF ORDER:	24 AUGUST 2021