Chace & Huxley

Case [2021] FedCFamC1F 26


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Chace & Huxley [2021] FedCFamC1F 26  

File number(s): MLC 8708 of 2017
Judgment of: WILLIAMS J
Date of judgment: 9 September 2021
Catchwords: FAMILY LAW – CHILDREN – Final parenting orders made on an undefended basis in circumstances where the mother has not participated in the proceedings since November 2019 and has not spent any time with the child since February 2020 – Allegations by both parents that the other parent poses an unacceptable risk to the child – Held the father does not pose an unacceptable risk to the child, but the mother does – Orders made for the child to continue to live with the father and for him to have sole parental responsibility – No orders made for the child to spend time with her mother – No evidence of mother’s current circumstances – Serious concerns about the mother’s mental health and capacity to care for the child supported by a forensic psychiatric assessment and the family report – Orders made for the child to assume the surname of her family unit  
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA
Cases cited:

Banks & Banks [2015] FamCAFC 36

Chapman & Palmer (1978) FLC 90-150

M v M (1988) 166 CLR 69

Stott & Holgar and Anor [2017] FamCAFC 152

Division: Division 1 First Instance
Number of paragraphs: 74
Date of hearing: 30 August 2021
Place: Melbourne
Counsel for the Applicant: Ms Fisken
Solicitor for the Applicant: Johnstone And Reimer Lawyers
Counsel for the Independent Children's Lawyer: Ms McNamee
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 8708 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CHACE

Applicant

AND:

MS HUXLEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

9 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The father have sole parental responsibility for the child, X born … 2013.

2.The child live with the father.

3.The child spend time and communicate with the mother as agreed between the father and mother in writing.

4.The mother and father and their agents be restrained as follows:

(a)from denigrating, criticising or belittling the other parent, their partner and family in the presence or hearing of the child or of speaking with the child, or to any other person in the child’s presence or hearing, in derogatory terms about the other parent or members of the other parent’s household or extended family;

(b)from coaching the child in making allegations or what to say;

(c)perpetrating any type of abuse on the child including, but not limited to, physical and/or psychological abuse.

5.The mother be restrained by herself or her agents as follows:

(a)from administering any medication to X unless agreed between the mother and father;

(b)from referring to any person other than the father as the child’s father in any medium;

(c)from referring to the father by his given name to the child;

(d)from…

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AGLC
Chace & Huxley [2021] FedCFamC1F 26
Case
[2021] FedCFamC1F 26
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to make final parenting orders concerning a child born in 2013, following a dispute between the parents, Chace and Huxley. The father, Chace, sought sole parental responsibility and for the child to live with him, while the mother, Huxley, did not participate in the proceedings since November 2019 and had not spent any time with the child since February 2020. Both parents alleged the other posed an unacceptable risk to the child. The court was required to determine whether Chace posed an unacceptable risk to the child, whether Huxley posed an unacceptable risk to the child, and if so, to what extent, and finally, whether it was in the child’s best interests to spend time and communicate with Huxley.

The court found that Chace did not pose an unacceptable risk to the child. However, serious concerns about Huxley's mental health and capacity to care for the child were supported by a forensic psychiatric assessment and the family report. The court found Huxley did pose an unacceptable risk to the child, and it was not in the child’s best interests to spend time and communicate with Huxley. Therefore, the court made orders for the child to continue to live with Chace and for him to have sole parental responsibility. No orders were made for the child to spend time with Huxley. The court also made orders for the child to assume the surname of her family unit, and for Chace to be permitted to change the child’s name and register himself as the child’s biological father. The court made various other orders to protect the child from any potential harm by Huxley.

Orders

Orders of the court

MLC 8708 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CHACE

Applicant

AND:

MS HUXLEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

9 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. The father have sole parental responsibility for the child, X born … 2013.

2. The child live with the father.

3. The child spend time and communicate with the mother as agreed between the father and mother in writing.

4. The mother and father and their agents be restrained as follows:

(a) from denigrating, criticising or belittling the other parent, their partner and family in the presence or hearing of the child or of speaking with the child, or to any other person in the child’s presence or hearing, in derogatory terms about the other parent or members of the other parent’s household or extended family;

(b) from coaching the child in making allegations or what to say;

(c) perpetrating any type of abuse on the child including, but not limited to, physical and/or psychological abuse.

5. The mother be restrained by herself or her agents as follows:

(a) from administering any medication to X unless agreed between the mother and father;

(b) from referring to any person other than the father as the child’s father in any medium;

(c) from referring to the father by his given name to the child;

(d) from contacting the child either directly or through her agents including, but not limited to, via telephone, social media, mail or email unless otherwise agreed in writing between the parties;

(e) from attempting to locate or contact the father’s and his wife’s and/or the child’s and/or any member of the father’s immediate household or place of residence, workplace, school or other place they regularly attend unless otherwise agreed in writing between the parties;

(f) from accessing or amending the child’s medical reports and records with any treating medical practitioner or allied health professional, including but not limited to the B Hospital;

(g) referring to the child by any name other than X.

6. The child be known as X and the father be permitted to approach the Registrar of Births, Deaths and Marriage in the state of Victoria to change the child’s name and register himself as the child’s biological father.

7. The father be permitted to obtain and/or renew the child’s passport without the consent of the mother.

8. The father be permitted to travel overseas with the child.

9. The child continue to attend upon her play therapist as directed by the said therapist.

10. All previous orders be discharged.

11. The Independent Children’s Lawyer be discharged.

12. The Independent Children’s Lawyer to serve upon the mother as soon as is practicable a sealed copy of the Orders made this day and Reasons for Judgment when available.

13. The service referred to in Order 12 hereof be effected by email to the mother at her last known email address, there being nothing known as to the mother’ current residential address.

14. The father be permitted to provide a copy of the Orders made this day and the Reasons when available to any investigative Authority or Magistrate in a Court if the mother initiates Intervention Order proceedings in the future.

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.

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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