Bellia & Bellia - [2022] FedCFamC2F 100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellia & Bellia [2022] FedCFamC2F 100

File number(s): MLC 11191 of 2019

Judgment of: JUDGE HARLAND

Date of judgment: 7 February 2022

Catchwords: FAMILY LAW – Parenting – mother not seen the children for over six years – oldest child is autistic – whether or not the mother should be reintroduced to the children – mother has longstanding drug addiction issues and mental ill health – whether or not there is an unacceptable risk.

Legislation: Family Law Act 1975 (Cth), pt.VII, ss.60B, 60CA, 60CC, 64, 65D

Cases cited: A & A (1998) FLC 92-800
Amador & Amador (2009) 43 Fam LR 268
B & B (1993) FLC 92-357
Bassler & Norton (No 2) [2010] FMCAFam 840
Blinko and Blinko [2015] FamCAFC 146
Jeffs & Marshall (No 5) [2020] FCCA 2893
Johnson & Page (2007) FLC 93-344
Keane & Keane and Another (2021) 62 Fam LR 190
M v M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
Randell & Adler [2020] FCCA 767
Re G (Children) [2006] 1 WLR 2305
Stott & Holgar [2017] FamCAFC 152
Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Place: Melbourne

Number of paragraphs: 138

Date of hearing: 25 & 26 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Chislett

Solicitor for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Mr Eley

Solicitor for the Respondent: Lander & Rodgers

Counsel for the Independent Children’s Lawyer Mr James

Solicitor for the Independent Children’s Lawyer Victoria Legal Aid
ORDERS

MLC 11191 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BELLIA

Applicant

AND:
MR BELLIA

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

7 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Respondent Father have sole parental responsibility for the children, X, born in 2010 and Y, born in 2013 ('the Children').
2.The Children live with the Respondent Father.
3.The Children spend no time with the Applicant Mother.
4.The Applicant Mother be permitted to send letters, cards and gifts no more than 4 times per year to an address/PO Box nominated by the Respondent Father. The Respondent Father may pass these on to the children at his discretion.

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 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…

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: Bellia & Bellia [2022] FedCFamC2F 100
Case: [2022] FedCFamC2F 100
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by the mother for orders that she be allowed to spend time with her two daughters, X and Y. The parties had separated in 2015 and the mother had not spent time with the children since then. The mother was concerned that the children were being denied a meaningful relationship with one of their parents. The father opposed the mother’s application and was concerned that the mother remains a risk to the children. The father was particularly concerned that X will not cope with a reintroduction to the mother given her diagnosis of Autism Spectrum Disorder. The mother relied on her progress in addressing her drug addiction and mental ill health to support her case. The Court found that the risk issues could not be sufficiently ameliorated. The mother has not been able to stop her cannabis use for a sustained period. The risks outweigh the benefit of the children being reintroduced to the mother and having a chance to develop a meaningful relationship with her. The Court ordered that the father have sole parental responsibility for the children and that they live with him. The children spend no time with the mother. The Court ordered that the mother be permitted to send letters, cards and gifts to the children no more than four times per year to an address/PO Box nominated by the father. The father may pass these on to the children at his discretion.

Orders