Casely & Casely - [2022] FedCFamC2F 474

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Casely & Casely [2022] FedCFamC2F 474

File number(s): PAC 2682 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 13 April 2022

Catchwords: FAMILY LAW – parenting - Orders made - best interests of children

Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA(3), 65D, 65DA(2), 102NA(2)

Cases cited: Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 246

Date of last submission/s: 21 March 2022

Date of hearing: 17, 18 and 21 March 2022

Place: Parramatta

Counsel for the Applicant: Mr Hill

Solicitor for the Applicant: Mark Whelan Lawyer

Counsel for the Respondent: The Respondent appeared in person

Counsel for the Independent Children’s Lawyer: Ms Hayward

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Suburb R Family Law
ORDERS

PAC 2682 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CASELY

Applicant

AND:
MR CASELY

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

13 APRIL 2022

THE COURT ORDERS THAT:
Parental responsibility
1.That the Mother have sole parental responsibility for X born in 2016 and Y in 2018 (“the children”).
2.Before making any non-urgent major long term decision in relation to the children the Mother will:
(a)Advise the Father by email of the proposed decision.
(b)Provide the Father with 7 days to make any comment or proposal by email in relation to the decision.
(c)After the expiration of the 7 days, consider the comments or proposals made by the Father (if any).
(d)Advise the Father of the outcome of her decision at least 4 weeks prior to implementing it.

Father’s engagement with mental health professional and CDT testing
3.That within 14 days of the date of these Orders, the Father shall do all things necessary to obtain a mental health plan from his General Practitioner for the purpose of engaging with a treating professional recommended by the Independent Children’s Lawyer in consultation with the Regulation 7 Family Consultant.
4.That the Father’s treatment referred to in these Orders be specifically to address the impact of family violence on children, and the management of his mental health generally.
5.That the Father’s treating professional referred to in these Orders be authorised to receive copies of:
(a)The Family Report dated 11 January 2021,
(b)Such items from the Tender Bundles that relate to the Father’s mental health,

and the Independent Children’s lawyer is given leave to provide the same to the Father’s treating professional.
6.That the Father remain engaged with the treating professional under these Orders for as long as such engagement is deemed necessary by the treating professional.
7.That the Father undergo chain of custody CDT testing with a medical practitioner or accredited pathology centre, for the detection of alcohol use within 48 hours of a written request issued by the ICL with such tests to occur no more frequently than once in each two months until the ICL is discharged, and the Father to provide…

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 Casely & Casely

Details

AGLC: Casely & Casely [2022] FedCFamC2F 474
Case: [2022] FedCFamC2F 474
Decision Date

CaseChat Overview and Summary

The case of Casely & Casely was heard in the Federal Circuit and Family Court of Australia, Division 2. The matter concerns parenting arrangements for the two children, X and Y. The primary concern was whether the children should live with their mother, Ms Casely, or whether there should be equal shared care arrangements with their father, Mr Casely. The Court found that it would be in the children's best interests for them to live with their mother and have a meaningful relationship with their father. The Court made interim parenting Orders which included the children spending time with their father in a supervised environment, as well as protective Orders to address the parents' concerns about each other's alcohol use. The Court also made Orders for the parents to relocate the children to a new address, subject to the mother purchasing a residence for the children to live in at the new address. The Court made Orders for the parents to only communicate with each other by email, and for the parents to refrain from denigrating each other in front of the children. The Court also made Orders for the Independent Children's Lawyer to remain appointed for a period of four months.

Orders