Carta & Lorenzo - [2024] FedCFamC2F 1179

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carta & Lorenzo [2024] FedCFamC2F 1179

File number(s): NCC 4196 of 2020

Judgment of: JUDGE BETTS

Date of judgment: 27 August 2024

Catchwords: FAMILY LAW – Parenting – final hearing – discreet issue – where the Mother seeks an absolute restraint on the child being exposed to firearms – where the Mother has traumatic personal experience involving firearms – where the Father is a keen, responsible gun owner and enjoys hunting – where there is a meaningful relationship between the Father and child without exposure to firearms – whilst there is no unacceptable physical risk to the child being exposed to firearms in Father’s presence and supervision, dismissing the Mother’s application would likely result in the child becoming embroiled in a ‘loyalty conflict’, strain co‑parenting trust and communication and have an adverse impact on the Mother’s long term mental health with flow on adverse effects on her parenting capacity – best interests of child to order restraint on exposure to firearms until 18 years of age.

Legislation:
Family Law Act 1975 (Cth)

Firearms Act 1996 (NSW)

Cases cited:
In the marriage of Kemsley & Kemsley (1984) FLC 91-567

Keane & Keane [2021] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 128

Date of last submission/s: 13 August 2024

Date of hearing: 25 March 2024, 18 April 2024, 1 May 2024, 18 June 2024 & 13 August 2024

Place: Newcastle

Counsel for the Applicant: Mr Young

Solicitors for the Applicant Mullane & Lindsay

Solicitors for the Respondent: N/a – Self-represented

Counsel for the Independent Children’s Lawyer: Ms Beckett

Solicitors for the Independent Children’s Lawyer: Joplin Lawyers

ORDERS

NCC 4196 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CARTA

Applicant

AND:
MS LORENZO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

27 AUGUST 2024

THE COURT ORDERS THAT:
1.Until the child X born in 2013 reaches the age of 18 years, the Mother and Father are each restrained from causing or permitting X to be exposed to firearms, being:
(a)A gun or other weapon that propels projectiles by means of gunpowder or other explosive substance;
(b)A spear gun used for the purpose of fishing.

2.The restraint in order 1 does not extend to X’s exposure to: a paintball gun, toy or firearm used for the purpose of carnival games or shows.
3.The proceedings are adjourned to 9.30am on 25 September 2024 for consideration of any costs applications noting that the Independent Children’s Lawyer is obliged to bring a costs application.

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…

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 Carta & Lorenzo

Details

AGLC: Carta & Lorenzo [2024] FedCFamC2F 1179
Case: [2024] FedCFamC2F 1179
Decision Date: 27 August 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a case between Mr Carta and Ms Lorenzo, concerning a parenting dispute involving their child, X, born in 2013. The primary issue was the Mother’s application for an absolute restraint on the child being exposed to firearms. The Mother, having had traumatic experiences involving firearms, strongly opposed any exposure to such weapons. In contrast, the Father, an avid and responsible gun owner and hunter, wanted to maintain a meaningful relationship with the child without imposing a blanket ban on firearms. The court was tasked with determining whether the child should be restricted from exposure to firearms and, if so, under what circumstances.

The court considered the best interests of the child, weighing the Mother's trauma and the Father's responsible gun ownership. While acknowledging the Father's responsible handling of firearms and the absence of physical risk in his presence, the court was concerned about the potential for the child to become ensnared in a loyalty conflict. Such a conflict could strain co-parenting trust and communication, and negatively impact the Mother’s long-term mental health and, consequently, her parenting capacity. The court recognised the importance of avoiding any situation that could create a 'loyalty conflict' for the child, which could have detrimental effects on the child's wellbeing.

The court determined that it was in the child's best interests to restrict exposure to firearms until the child turned 18. The order prohibited both parents from allowing the child to be exposed to firearms, defined as guns or weapons that propel projectiles by gunpowder or other explosive substances, and spear guns used for fishing. However, the court allowed exceptions for exposure to paintball guns, toy firearms, and firearms used in carnival games or shows. The proceedings were adjourned to allow for any costs applications, with the Independent Children’s Lawyer obliged to bring a costs application.

The court ordered that until X reaches the age of 18, neither parent shall cause or permit X to be exposed to firearms. The order further specified that the restraint did not extend to X’s exposure to paintball guns, toy firearms, or firearms used in carnival games or shows. The case was adjourned to allow for consideration of costs applications.

Orders

Orders of the court

NCC 4196 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CARTA

Applicant

AND:

MS LORENZO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

27 AUGUST 2024

THE COURT ORDERS THAT:

1. Until the child X born in 2013 reaches the age of 18 years, the Mother and Father are each restrained from causing or permitting X to be exposed to firearms, being:

(a) A gun or other weapon that propels projectiles by means of gunpowder or other explosive substance;

(b) A spear gun used for the purpose of fishing.

2. The restraint in order 1 does not extend to X’s exposure to: a paintball gun, toy or firearm used for the purpose of carnival games or shows.

3. The proceedings are adjourned to 9.30am on 25 September 2024 for consideration of any costs applications noting that the Independent Children’s Lawyer is obliged to bring a costs application.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	NCC 4196 of 2020
Judgment of:	JUDGE BETTS
Date of judgment:	27 August 2024
Catchwords:	FAMILY LAW – Parenting – final hearing – discreet issue – where the Mother seeks an absolute restraint on the child being exposed to firearms – where the Mother has traumatic personal experience involving firearms – where the Father is a keen, responsible gun owner and enjoys hunting – where there is a meaningful relationship between the Father and child without exposure to firearms – whilst there is no unacceptable physical risk to the child being exposed to firearms in Father’s presence and supervision, dismissing the Mother’s application would likely result in the child becoming embroiled in a ‘loyalty conflict’, strain co‑parenting trust and communication and have an adverse impact on the Mother’s long term mental health with flow on adverse effects on her parenting capacity – best interests of child to order restraint on exposure to firearms until 18 years of age.
Legislation:	Family Law Act 1975 (Cth) Firearms Act 1996 (NSW)
Cases cited:	In the marriage of Kemsley & Kemsley (1984) FLC 91-567 Keane & Keane [2021] FamCAFC 1
Division:	Division 2 Family Law
Number of paragraphs:	128
Date of last submission/s:	13 August 2024
Date of hearing:	25 March 2024, 18 April 2024, 1 May 2024, 18 June 2024 & 13 August 2024
Place:	Newcastle
Counsel for the Applicant:	Mr Young
Solicitors for the Applicant	Mullane & Lindsay
Solicitors for the Respondent:	N/a – Self-represented
Counsel for the Independent Children’s Lawyer:	Ms Beckett
Solicitors for the Independent Children’s Lawyer:	Joplin Lawyers

NCC 4196 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CARTA Applicant
AND:	MS LORENZO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	27 AUGUST 2024