Cassidy & Pallante - [2022] FedCFamC2F 678

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cassidy & Pallante [2022] FedCFamC2F 678

File number: MLC 12983 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 22 March 2022

Catchwords: FAMILY LAW - Undefended application - not a default judgment - parenting matter listed for interim hearing - final orders made - hair follicle test orders not complied with - significant violence during relationship.

Legislation:
Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.13

Cases cited:
A & Z [2006] FamCA 179; (2006) FLC 93-257

Hiron & Tourle [2021] FCCA 1270

Rice & Asplund (1979) FLC 90-725

Division: Division 2 Family Law

Number of paragraphs: 66

Date of hearing: 22 March 2022

Counsel for the Applicant: Mr O. Cain

Solicitor for the Applicant: KJS Legal

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

MLC 12983 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CASSIDY

Applicant

AND:
MR PALLANTE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

22 MARCH 2022

THE COURT ORDERS THAT:
1.The mother, MS CASSIDY, ('the Mother') have sole parental responsibility for the child, X born in 2017, ('the child').
2.The child live with the Mother.
3.The father, Mr PALLANTE, ('the Father') spend no time with the child.
4.Discharge the Independent Children's Lawyer 29 days after this decision.
5.All extant applications are otherwise dismissed.
6.The Mother's application for costs be dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cassidy & Pallante has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

These are the settled reasons of a judgment delivered orally immediately after closing submissions. This…

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 Cassidy & Pallante

Details

AGLC: Cassidy & Pallante [2022] FedCFamC2F 678
Case: [2022] FedCFamC2F 678
Decision Date

CaseChat Overview and Summary

Cassidy and Pallante involved a parenting application made by Ms Cassidy, seeking sole parental responsibility for the parties' son, X, and for Mr Pallante to have no time with X. The matter proceeded on an undefended basis before Judge O'Shannessy. Mr Pallante was absent from the hearing, despite receiving notification of the hearing and the consequences of non-attendance. The Court had previously ordered Mr Pallante to undertake a hair follicle test for illicit substances, but he failed to do so. The Court considered it appropriate to proceed with the hearing in the absence of Mr Pallante. In reaching its decision, the Court had regard to the history of the relationship between the parties, including the significant violence that occurred during the relationship. The Court also had regard to evidence of Mr Pallante's drug addiction, his criminal history, and the psychological assessment of both parties. On the evidence, the Court found it was not in the best interests of X for him to have any time with his father. The Court made orders for sole parental responsibility to be vested in Ms Cassidy and that Mr Pallante spend no time with X. The Court dismissed the application for costs.

Orders