Cardwell & Cardwell - [2023] FedCFamC2F 93

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cardwell & Cardwell [2023] FedCFamC2F 93

File number(s): NCC 4248 of 2020

Judgment of: JUDGE MYERS

Date of judgment: 27 January 2023

Catchwords: FAMILY LAW – Family Law Act 1975 - parenting

Legislation:
Family Law Act 1975 (Cth), ss 60CC, 60CC(3)(g) , 68B

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 114

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336

Keane [2021] FamCAFC 1

Re Andrew (1996) FLC 92-692

Sedgley (1995) 19 Fam LR 363

Division: Division 2 Family Law

Number of paragraphs: 81

Date of last submissions: 10 November 2022

Date of hearing: 30-31 August 2022, 8 September 2022

Counsel for the Applicant: Ms Reid

Solicitor for the Applicant: Ark Law Lawyers

Counsel for the Respondent: Mr Kelly

Solicitor for the Respondent: Wm Lloyd & Associates

Counsel for the Independent Children's Lawyer: Mr Maddox

Solicitor for the Independent Children's Lawyer: Harb Lawyers
ORDERS

NCC 4248 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CARDWELL

Applicant

AND:
MS CARDWELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MYERS

DATE OF ORDER:

27 JANUARY 2023

THE COURT ORDERS THAT:
1.By Consent, the Mother have sole parental responsibility for the children W born in 2019, X born in 2012, Y born in 2014 and Z born in 2016.
2.By Consent, that the child X spend time with the Father as agreed between the parties, but at the Mother’s sole discretion, with the Mother having taken into account X’s views.
3.That the children X born 2012, Y born 2014, Z born 2016 and W born 2019 live with the Mother.
4.That the children Y, Z and W spend time with Father every first Saturday in the month from 10:00am to 4:00pm, supervised by N Contact Centre or, in the event that N Contact Centre is not available, such other professional supervision as is nominated by the father (noting that the first Saturday of each month would include the Saturday of the Father’s Day weekend).
5.That the father pay the cost of the supervision.
6.That the father be permitted to send cards, gifts and letters to any or all of the said children not more than three (3) times in each calendar year.
7.That within fourteen (14) days the mother provide to the father a postal address to which such cards, gifts and letters can be sent (either a residential address or a Post Office Box number).
8.That the mother do all things to attend obtain a referral to, and obtain a paediatric treatment and assessment for, the child Z.
9.That the mother do all things to have the children Y and Z assessed for speech therapy, and do all things recommended by any speech therapist.
10.That the parties communicate (in relation to parenting matters only) as follows:
(a)If the matter requires urgent notice or resolution, via text message;
(b)Otherwise, via the Divvito App or OurFamilyWizard App.

11.That both parties are to ensure they keep the…

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 Cardwell & Cardwell

Details

AGLC: Cardwell & Cardwell [2023] FedCFamC2F 93
Case: [2023] FedCFamC2F 93
Decision Date

CaseChat Overview and Summary

In the case of Cardwell & Cardwell, the court was tasked with determining the parenting arrangements for four children, X, Y, Z, and W, born in 2012, 2014, 2016, and 2019 respectively. The major issues before the court were the father's mental health, family violence, and the mother's capacity to parent where the court orders time between the children and the father. The court found the father's mental health to be a significant concern, as he had a history of bipolar disorder, depression, ADHD, and autism. His failure to accurately report his mental health status and medication, as well as his inability to engage in anger management and parenting courses, raised concerns about his capacity to care for the children.

The court also found the mother's evidence of family violence credible and reliable, while considering the father's evidence to be unreliable and lacking credit. The mother's capacity to cope was found to be affected by the father's behaviours, but it was not necessary to make a finding that her parenting capacity would be discernibly impaired if the children spent time with the father. The court considered the benefits of the children having a meaningful relationship with both parents but found that the father's mental health and family violence concerns outweighed these benefits.

Based on the evidence presented, the court made orders for the children to live with the mother and for supervised time with the father every first Saturday in the month from 10:00am to 4:00pm. The court also made orders for the mother to obtain paediatric treatment for Z and have Y and Z assessed for speech therapy. The court rejected the mother's request to change the children's surnames and found that there was no basis to make a finding for or against the father's religious beliefs. The court made section 68B injunctions against the father and ordered the children's names to be placed on the Airport Watch List.

In summary, the court made the aforementioned orders to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence, while also considering the benefits of the children having a meaningful relationship with both parents. The court found that the father's mental health and family violence concerns outweighed the benefits of unsupervised time with the father, and that professional supervision would be necessary to protect the children's welfare.

Orders