Bednary & Nollet - [2023] FedCFamC1F 214

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bednary & Nollet [2023] FedCFamC1F 214

File number(s): MLC 14352 of 2020

Judgment of: JOHNS J

Date of judgment: 5 April 2023

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE –– application for adjournment of not less than six months – where the father seeks an adjournment to allow his lawyers time to familiarise themselves with proceedings –where father seeks to adjourn to engage in dyadic therapy with child – where mother opposes adjournment – where father has not complied with previous court orders – where the father has failed to act on recommendations for dyadic therapy made in 2021

FAMILY LAW – COSTS – application for costs on an indemnity basis – where delay was caused due to father’s non-compliance with orders – where the father has been wholly unsuccessful in his application – order made for costs on party/party basis – costs fixed in the sum of $5,300

Legislation:
Family Law Act 1975 (Cth) ss 102NA(2), 117(1), (2) & (2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rules 12.13(4), 12.17(1) & (3)

Cases cited:
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

I and I (1995) FLC 92-625

Kohan & Kohan (1993) FLC 92-340

Mertens & Mertens [2016] FamCAFC 136

Munday v Bowman (1997) FLC 92-784

Prantge & Prantage [2013] FamCAFC 105

Division: Division 1 First Instance

Number of paragraphs: 82

Date of hearing: 20 March 2023

Place: Melbourne

Counsel for the Applicant: Ms McCreadie

Solicitor for the Applicant: MST Lawyers

Counsel for the Respondent: Ms Colla

Solicitor for the Respondent: Schetzer Papaleo Family Lawyers
ORDERS

MLC 14352 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BEDNARY

Applicant

AND:
MS NOLLET

Respondent

order made by:

JOHNS J

DATE OF ORDER:

20 March 2023

THE COURT ORDERS THAT:
1.That order 1 of the orders dated 3 February 2023, be varied such that all applications for final orders be adjourned for hearing before Justice Johns on 15 May 2023 at 10 am as a four-day matter (with priority) and that the evidence in chief of all witnesses be given by affidavit.
2.That order 5 of the orders dated 3 February 2023 be varied such that by 4pm on 3 April 2023, the respondent file and serve:
(a)An amended response setting out with precision what orders are being sought and;
(b)The affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon from previous hearings cannot be relied upon as evidence in chief)

3.That order 6 of the orders dated 3 February 2023 be varied such that by 4pm on 12 April 2023 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
4.That otherwise the orders dated 3 February 2023 operate in full force and effect.
5.That order 2 of the orders dated 25 August 2022 be suspended.
6.That the parents and X attend upon Ms…

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 Bednary & Nollet

Details

AGLC: Bednary & Nollet [2023] FedCFamC1F 214
Case: [2023] FedCFamC1F 214
Decision Date

CaseChat Overview and Summary

This case concerns the final determination of parenting and property orders in the family law context. The mother and father of a young child, born in 2020, separated in September 2020. The mother has primary care of the child, while the father has limited supervised time with the child. The primary legal issues before the court were whether the father should have increased contact with the child, and whether the child should engage in therapeutic intervention with the father. The court was also required to consider the recommendations of two experts: Dr C, who prepared a Family Report, and Dr E, who conducted a Psychiatric Assessment of both parties.

The court considered the evidence of the experts and the submissions of both parties. The court found that the father should have increased contact with the child, but that this contact should be supervised and accompanied by therapeutic intervention to address the father's anger management issues. The court also found that the child should engage in therapeutic intervention with the father to address the father's ability to be attuned to the child. The court accepted the recommendations of Dr C and Dr E, and made orders accordingly.

The court made orders that the father have increased contact with the child, but that this contact be supervised and accompanied by therapeutic intervention. The court also made orders that the child engage in therapeutic intervention with the father. The court further made orders that the mother and father attend upon a Parenting After Separation Program. The court did not make any orders regarding the property settlement between the parties, as this had already been determined by consent.

In conclusion, the court found that the father should have increased contact with the child, but that this contact be supervised and accompanied by therapeutic intervention. The court also found that the child should engage in therapeutic intervention with the father. The court made orders accordingly, and did not make any orders regarding the property settlement between the parties.

Orders

Orders of the court

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Background

Background to the litigation

These are my Reasons for Judgment with respect to those orders.BACKGROUND The mother was born in 1984 and is aged 38 years. She is engaged in part-time employment as a professional. The father was born in 1982 and is aged 40 years. He is self-employed and describes himself as a Business Owner. The parties commenced cohabitation in 2017 and separated on 27 September 2020. The mother alleges that separation occurred following an alleged incident of family violence perpetrated by the father. At that time, Victoria Police applied for and obtained an interim Intervention Order against the father for the protection of the mother and the child. There is a current final Family Violence Intervention Order against the father for the protection of the mother and the child, which will expire in 2024. The parties’ child, X, was born in 2020, and was only a few months old at the time of the parties’ separation. He has lived with the mother and has had only limited supervised time with the father since the parties’ separation. At the time of hearing, X was spending time with the father on one occasion per calendar month. The mother commenced proceedings seeking final parenting and property orders in December 2020. The father filed his Response to Application for Final Orders in February 2021. Final property orders were made by consent in June 2021. In February 2021 orders were made that the parties attend for the preparation of a Family Report. That report was prepared by Dr C and is annexed to her affidavit filed 14 July 2021. Dr C interviewed both the mother and the father for the purposes of that report and conducted observations of each party with the child, who was then nearly one year old. Dr C made a series of recommendations at the conclusion of her report including that:-·The child continue to live primarily with the mother;·The child spend time with the father twice per week for between two to three hours;·The father and the child engage with an Infant Mental Health Specialist (ideally trained in the ‘Watch, Wait and Wonder’ or other evidence-based approach) for treatment aimed at building the father’s ability to be attuned to the child; and·The family should re-present for an updated Family Report assessment after the father-child intervention has occurred, or after approximately 12 months. The parties also attended upon Dr E for the purpose of Psychiatric Assessment. Dr E’s report dated 4 June 2021 is annexed to his affidavit affirmed 15 July 2021. Dr E recommends that the father engage with a Clinical Psychologist to “improve his self-regulation and interpersonal skills under the auspices of anger management”.[1] Otherwise, Dr E did not consider that the husband required psychiatric treatment. As to the mother, Dr E concluded that the mother was receiving appropriate professional help with her Perinatal Psychiatrist and that there was no indication for additional professional input.[1] Psychiatric Assessment of Dr E dated 4 June 2021, [29].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 14352 of 2020
Judgment of:	JOHNS J
Date of judgment:	5 April 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE –– application for adjournment of not less than six months – where the father seeks an adjournment to allow his lawyers time to familiarise themselves with proceedings –where father seeks to adjourn to engage in dyadic therapy with child – where mother opposes adjournment – where father has not complied with previous court orders – where the father has failed to act on recommendations for dyadic therapy made in 2021 FAMILY LAW – COSTS – application for costs on an indemnity basis – where delay was caused due to father’s non-compliance with orders – where the father has been wholly unsuccessful in his application – order made for costs on party/party basis – costs fixed in the sum of $5,300
Legislation:	Family Law Act 1975 (Cth) ss 102NA(2), 117(1), (2) & (2A) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rules 12.13(4), 12.17(1) & (3)
Cases cited:	Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 I and I (1995) FLC 92-625 Kohan & Kohan (1993) FLC 92-340 Mertens & Mertens [2016] FamCAFC 136 Munday v Bowman (1997) FLC 92-784 Prantge & Prantage [2013] FamCAFC 105
Division:	Division 1 First Instance
Number of paragraphs:	82
Date of hearing:	20 March 2023
Place:	Melbourne
Counsel for the Applicant:	Ms McCreadie
Solicitor for the Applicant:	MST Lawyers
Counsel for the Respondent:	Ms Colla
Solicitor for the Respondent:	Schetzer Papaleo Family Lawyers

MLC 14352 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BEDNARY Applicant
AND:	MS NOLLET Respondent

order made by:	JOHNS J
DATE OF ORDER:	20 March 2023