Bell & Atkinson - [2022] FedCFamC2F 211

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bell & Atkinson [2022] FedCFamC2F 211

File number(s): MLC 9516 of 2020

Judgment of: MCCLELLAND DCJ

Date of judgment: 2 March 2022

Catchwords: FAMILY LAW – PARENTING AND PROPERTY – Review of a registrar’s decision – Where it is alleged that the father was in possession of pornography and suffers from alcohol and substance abuse – Where the mother seeks to reduce the time that the child spends with the father – Where the mother seeks review of disclosure, valuation and mediation orders – Where the mother failed to file a supporting affidavit in time – Absence of evidence to support the mother’s allegations – Review application dismissed – Written submissions as to costs.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 100, 101, 256(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.07, 5.07, 14.05, 14.07

Cases cited:
Banks & Banks (2015) FLC 93–637

Feiteiro & Feiteiro [2019] FamCA 647

Henley & Henley [2019] FamCA 101

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski & AlP Town (2007) 37 Fam LR 518,

Noble Earth Technologies Pty Ltd v Hampic Pty Ltd [2012] NSWSC 935

Sigley v Evor (2011) 44 Fam LR 439

SS & AH [2010] FamCAFC 13

Stott & Holgar & Anor [2017] FamCAFC 152

Tomko v Palasty (No 2) (2007) 71 NSWLR 61

Division: Division 2 Family Law

Number of paragraphs: 105

Date of hearing: 11 February 2022

Place: Sydney (via videolink)

Solicitor for the Applicant: Mr Rothschild

Counsel for the Respondent: Ms Hannan

Solicitor for the Independent Children's Lawyer: Ms Schuck
ORDERS

MLC 9516 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ATKINSON

Applicant

AND:
MR BELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

2 MARCH 2022

THE COURT ORDERS THAT:
1.The mother’s Application for Review filed on 22 December 2021 is dismissed.
2.In the event of the respondent father and/or the Independent Children’s Lawyer (“ICL”) seeking an order for costs, they are to file, within 14 days, written submissions of no more than three (3) pages setting out the basis upon which such costs are claimed.
3.In the event that such submissions are filed, the applicant mother shall be entitled to file written submissions in reply of no more than three (3) pages within 14 days of being served with the respondent father’s and/or the ICL’s submissions.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family…

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 Bell & Atkinson

Details

AGLC: Bell & Atkinson [2022] FedCFamC2F 211
Case: [2022] FedCFamC2F 211
Decision Date

CaseChat Overview and Summary

The mother, Ms Atkinson, sought a review of parenting and property orders made by a senior judicial registrar on 23 November 2021. The mother sought to have the time the child spent with the father reduced and objected to the child travelling with the father to Queensland for several days in March 2022. The mother further sought to have property disclosure, valuation and mediation orders reviewed. The Court dismissed the mother's application for review on the basis that the orders were consistent with the recommendations of a Regulation 7 Family Consultant and appropriately balanced the risk of harm with the best interest of the child in having a meaningful relationship with her father. The Court found that the orders appropriately allowed the child to spend an amount of time with the father that was consistent with her stage of development. The Court further found that the orders for disclosure, valuation and mediation were appropriate. The Court also found that the mother's application for additional orders not made by the senior judicial registrar was without merit.

Orders