BONNEY & BOONE - [2019] FCCA 135

FEDERAL CIRCUIT COURT OF AUSTRALIA

BONNEY & BOONE

[2019] FCCA 135

Catchwords:
FAMILY LAW – Parenting – dispute as to future parenting arrangements for 10 year old child – where child currently living with father and spending no time with mother – whether mother poses unacceptable risk to child due to emotional/psychological harm – Held mother poses unacceptable risk to child – child to live with father with father to have sole parental responsibility – child to spend supervised time with mother but if mother does not complete intake or spend consecutive time with child then time to cease.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, pt.VII

Cases cited:

Betros & Betros [2017] FamCAFC 90

Briginshaw v. Briginshaw (1938) 60 CLR 336

Doyle & Doyle (1992) FLC 92-286

G & C [2006] FamCA 994

Godfrey & Sanders (2007) 208 FLR 287

H v W (1995) FLC 92-598

Johnson & Johnson (2000) 201 CLR 488

Johnson & Page [2007] FamCA 1235

Mazorski & Albright (2008) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Moose & Moose [2008] FamCACF 108

R & C [1993] FamCA 62

R & R: Childrens’ Wishes [2000] FamCA 43

Re F Litigants In Person Guidelines [2001] FamCA 348

Applicant:

MR BONNEY

Respondent:

MS BOONE

File Number:

BRC 4082 of 2013

Judgment of:

Judge L. Turner

Hearing dates:

10 July 2017, 11 July 2017,

27 September 2018 and 28 September 2018

Date of Last Submission:

28 September 2018

Delivered at:

Brisbane

Delivered on:

1 February 2019

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Ms Murphy

Solicitors for the Independent Children's Lawyer:

Cng Law - Springwood Office

FINAL PARENTING ORDERS

All previous parenting orders and parenting plans be discharged.
The child [X] born …2008 live with the father.
The father have sole parental responsibility for the child and notify the mother within 48 hours in writing as to any major long-term decision made by the father for the child.
The mother spend supervised time with the child as agreed upon between the parties but failing which, for two hours every two months at the Contact Centre Suburb A (or such other contact centre as nominated by the father) (contact centre), at such dates and times as available at the centre and as organised by the mother, with the mother to provide the father with 28 days written notice as to the dates and times.
The costs of the contact centre be shared equally between the parties.
Within 14 days from the date of the orders, the parties take whatever steps are necessary and sign whatever documents are required to commence the intake process with the contact centre.
In the event the mother does not complete the intake process for the contact centre in accordance with Order (6) within 6 months from the date of the orders, then Order (4) is hereby discharged and the mother shall not spend time with or communicate with the child.

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 BONNEY & BOONE

Details

AGLC: BONNEY & BOONE [2019] FCCA 135
Case: [2019] FCCA 135
Decision Date: 1 February 2019

CaseChat Overview and Summary

The Family Court of Australia considered a dispute concerning the future parenting arrangements for a ten-year-old child. The child was residing with the father and had no contact with the mother. The central issue was whether the mother posed an unacceptable risk of emotional or psychological harm to the child.

The court was required to determine whether the mother presented an unacceptable risk to the child and, consequently, what parenting orders were in the child's best interests. This involved assessing the potential impact of the mother's conduct on the child's emotional and psychological well-being.

Justice L. Turner found that the mother did pose an unacceptable risk to the child. Accordingly, the court ordered that the child live with the father and that the father have sole parental responsibility. The child was to spend supervised time with the mother, with the condition that if the mother failed to complete an intake process or spend consecutive time with the child, this supervised time would cease.

Orders