Federal Circuit and Family Court of Australia
(DIVISION 2)
Berys & Berys [2022] FedCFamC2F 1162

File number(s): SYC 1562 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 5 September 2022

Catchwords: FAMILY LAW – parenting – final orders – best interest of the children - where Father has perpetrated family violence and has anger management issues – where Mother, Father and the ICL each seek different regime of graduated progression of time between Father and children – where Mother is to have sole parental responsibility for the children – where the Father’s time with the children is to be in the presence of an adult known to the children until the Father completes an anger management course and other courses – where unsupervised overnight time with the Father and children is to graduate to the endpoint of four nights each alternate fortnight at graduated intervals from the commencement of time – where certain injunctive orders as sought by the Mother are made – where the ICL’s costs are to be paid by Mother and Father

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Godfrey & Sanders (2007) FamCA 102

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Johnson & Page [2007] FamCA 1235

M & M (1988) 166 CLR 69

M & S (formerly E) (2007) FLC 93-313

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

Napier & Hepburn [2006] FamCA 1316

Tait & Densmore (2007) FamCA 1383

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 298

Date of hearing: 10-13 May 2021

Place: Sydney

Counsel for the Applicant: Mr Jackson

Solicitor for the Applicant: Urban Family Lawyers

Counsel for the Respondent: Ms Eldershaw

Solicitor for the Respondent: Clinch Long Woodbridge Lawyers

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law
ORDERS

SYC 1562 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BERYS

Applicant

AND:
MS BERYS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

5 SEPTMBER 2022

THE COURT ORDERS THAT:
1.That the Mother has sole parental responsibility for the children X born in 2012 and Y born in 2016 (‘the children’;).
2.That the Mother:
(a)Notify the Father of any proposed decision relation to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)Take into consideration any views expressed by the Father, in writing, about the proposed decision; and
(c)Notify the Father in writing of her final decision about the issue.

3.That the Father forthwith take all necessary steps to enrol in and complete, as soon as possible, the following courses:
(a)"Tuning in to Kids"; and
(b)"Taking Responsibility",

both as provided by C Counsellors,…

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 Berys & Berys

Details

AGLC: Berys & Berys [2022] FedCFamC2F 1162
Case: [2022] FedCFamC2F 1162
Decision Date

CaseChat Overview and Summary

These are final parenting proceedings between the Applicant Father, Mr Berys born in 1956, ('the Father') and the Respondent Mother, Ms Berys, born in 1971, ('the Mother'). The final hearing of this matter took place over four days from 10 to 13 May 2021. The principal issues for determination were: (a) The time to be spent by the children with their Father and whether such time should be supervised, and, if so, for how long; (b) How changeovers not occurring at the children's school are to be effected; and (c) Whether the Father should be ordered to undertake any specific courses, either as a condition of his time with the children, or at all. The Court found that the Father had perpetrated family violence against the Mother. The Court found that there was an unacceptable risk to the children if they were to spend time unsupervised with the Father. The Court found that the best interest of the children was to order that the Father complete a suitable anger management course and a suitable parenting course and that the children spend time with the Father in the presence of an adult known to the children until such courses were completed or for six months, whichever was longer. The Court found that the endpoint of the children's time with the Father should be each alternate weekend from end of school on Thursday until the start of school on Monday. The Court found that the Mother should have sole parental responsibility for the children. The Court ordered that the Mother and Father keep each other advised of their contact details and that the parties refrain from making derogatory comments about the other parent in the presence of the children. The Court ordered that the parties be restrained from physically disciplining the children or throwing any item at them or in their direction. The Court ordered that the parties be restrained from permitting the children to play computer games, access internet pages, or watch television programs or movies with a rating that does not correlate to the age of the children at the time. The Court ordered that the parties be restrained from providing the children with any electronic device that is capable of tracking the children's or the other parent's location. The Court ordered that the parties be restrained from discussing these proceedings with the children except as is necessary to inform the children of when they will be in the care of each parent pursuant to these orders. The Court ordered that the Father be restrained from permitting either of the children to ride a motor bike or a quad bike whether as the rider or as a passenger/pillion; toileting or showering in the presence of the children; being naked from below the waist in the presence of the children; dressing or undressing the children; causing or permitting the children to be placed into the care of Ms D, or for Ms D to collect or deliver the children to or from changeover (this includes nominating Ms D for the purpose of Order 5). The Court ordered that the Mother shall provide the Father with updating information and any exercises that Y is required to undertake by her speech therapist. The Court ordered that the parties shall use the Family Wizard Application (or other app as agreed between the parties) for the purpose of communicating with each other about the care, welfare and development of the children. If the Family Wizard app or other agreed app ceases to be available, then the Mother shall nominate a replacement application or dedicated email address. All such communication is to be polite and businesslike and relate solely to matters concerning the care of the children. The Court ordered that within six (6) weeks of the date of these orders, the Mother pay to Legal Aid NSW the sum of $4,530 by way of contribution to the costs of the ICL. The Court ordered that within six (6) weeks of the date of these orders, the Father pay to Legal Aid NSW the sum of $6,180 by way of contribution to the costs of the ICL.

Orders