FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHESTERTON & THEODORE | [2021] FCCA 560 |
| Catchwords - FAMILY LAW – Parenting application – where applicant father has not seen children since early 2018 – where parties’ relationship had been essentially non-conflictual but fell into a pattern of significant dispute post-separation – where applicant demands that respondent vacate former matrimonial home – where applicant commences dating and discusses those women with children – where children not comfortable in the introduction of other women so early after separation – where series of incidents result in police involvement, including at instance of applicant who reports eldest child to police for alleged incident of domestic violence – where financial disputes are said by applicant to be central to the parties parenting conflict – where disclosure is made by youngest child resulting in mandatory reporting by school and investigation by child protection services – where ongoing involvement of child inclusive conferences, family therapy and therapeutic counselling – where children entrenched in view that, at present, they wish not to communicate or spend time with applicant – where the preponderance of evidence supports conclusion that applicant is alienating children and not vice versa – whether applicant has capacity to recognise present difficulties – where extensive evidence by applicant’s family and friends attests to his non-violent demeanour – where applicant’s love for children is undoubted – applicable principles – orders made. |
| Legislation: Evidence Act 1995 (Cth), ss.68, 128,140, Pt3.2 Family Law Act 1975 (Cth), ss.11F, 60, 60(B), 60CC, 60(I), 61DA, 61DAB, 62B, 64B, 65A, 65D, 65DAA |
| Cases cited: AMS v AIF (2002) 211 CLR 238 Bell & Nahos [2016] FamCAFC 244 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Champness v Hanson (2009) FLC 93-407 Johnson v Page(2007) FLC 93,344 Cooke & Morton [2018] FamCAFC 9 Cubbin & Cutler [2018] FamCAFC 84 Dundas & Blake [2013] FamCAFC 133 Godfrey v Sanders (2007) 208 FLR 287 Goode & Goode (2006) 36 Fam LR 422 Harridge & Harridge [2010] FamCA 445 Heath v Hemming (No 2) [2011] FamCA 749 Holzmann & Holzmann [2018] FamCAFC 2 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWL378 Kulat & Azzarudin [2018] FAMCAFC 97 Kuglioski v Metrobus(2004) 220 CLR 363 MRR v GR (2010) 240 CLR 461 Mallory & Mallory [2018] FCCA 2335, [432] (Williams, J) citing Lennon & Lennon [2011] FamCA 571 Mellick & Mellick [2014] FamCAFC 236 Molloy & Reid [2018] FamCAFC 89 Morgan & Miles (2007) FLC 93-343 Morton & Berry (2014) FLC 93-613 Norbis & Norbis (1986) 161 CLR 513, 519, 522-533, 536 Oswald and Karrington [2016] FamCAFC 152 Panno & Panno [2018] FamCAFC 195 Ralton & Ralton [2016] FCCA 1832, [2017] FCAFC 182 Reid & Lynch (2010) FLC 93-448 SCVG & KLD [2014] FamCAFC 42, 93 Slater & Light [2013] FamCAFC 4 Stott & Holgar [2017] FamCAFC 152 U v… |
Continue reading CHESTERTON & THEODORE
Sign in free to access the full text
- AGLC
- CHESTERTON & THEODORE [2021] FCCA 560
- Case
- [2021] FCCA 560
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant had the capacity to recognise the present difficulties in his relationship with the children, and what parenting orders were in the best interests of X and Y, given the evidence of alienation by the applicant and the children's entrenched views. The court was required to consider the applicable principles of family law in determining parental responsibility, living arrangements, and the nature and extent of any future contact between the applicant and the children.
The court's reasoning focused on the preponderance of evidence, which supported the conclusion that the applicant was alienating the children, rather than the children being alienated from him. Despite extensive evidence attesting to the applicant's non-violent demeanour and undoubted love for his children, the court found that the applicant lacked the capacity to recognise the present difficulties. Applying the best interests of the children as the paramount consideration, the court discharged all previous orders and made new orders.
The final orders provided that the respondent mother have sole parental responsibility for the children, and that the children live with her. Contact between the children and the applicant father was to occur only in accordance with the children's wishes. The applicant was restrained from initiating contact or communication with the children, their school, activities, or health professionals, and from initiating contact with the respondent or attending at the respondent's or maternal grandparents' residences. Limited contact was permitted via telephone and/or video-conference at the children's request, and the applicant was permitted to send a limited number of letters and gifts annually, subject to vetting by the paternal aunt. The court also made provisions for the children's passports and travel, and directed the Independent Children's Lawyer to convey an apology from the applicant to the children and to communicate the effect of the orders. The appointment of the Independent Children's Lawyer was to be discharged within 28 days.
Orders
Orders of the court
1.
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Court of Australia Act 1975 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.
All previous orders respecting X, born in 2005 (“X”) and Y, born in 2007 (“Y”) (collectively, “the children”) be discharged.
3.
The respondent mother have sole parental responsibility for the children.
4.
The children live with the respondent mother.
5.
The children spend time and communicate with the applicant father only in accordance with their wishes.
6.
Subject to paragraphs (7)-(11) of this Order, unless otherwise agreed in writing between the parties, the applicant father be restrained whether by himself, his servants, his agents or howsoever otherwise from:
(a) initiating contact or communicating with the children or either of them;
(b) attending at, or communicating with, the children’s school or activities, extra-curricular providers and health professionals;
(c) initiating any contact or communications with the respondent;
(d) attending at the respondent’s residence; or
(e) attending at the residence of the maternal grandparents.
7.
The children have contact by telephone and/or video-conference with the father, according to their wishes (including as to the need for supervision of any such contact by telephone and/or videoconference), and to be initiated at the request of the children or either of them and not otherwise.
8.
The respondent mother shall facilitate any request by either child for any such contact by telephone and/or videoconference.
9.
The father be permitted to send one (1) letter by mail, to each of X and Y on four (4) separate occasions each calendar year.
10.
The father be permitted to provide the children, by mail, gifts for each of the children’s birthdays and at Easter and Christmas.
11.
For the purposes of paragraphs (9) and (10) of this Order, to mail any such letters or gifts respectively, the father is to transmit them by mail in the first instance to the children’s paternal aunt, Ms B, in order that she may vet the contents of such letters and consider the gifts in deciding whether such items should be sent to, and received by, the children.
12.
The applicant father and respondent mother be permitted to receive school reports, newsletters and photos directly from the children’s school.
13.
For the purposes of paragraph (12) of this Order, the Independent Children’s Lawyer is directed to transmit a copy of this Order to such school.
14.
Direct that the Independent Children’s Lawyer convey to the children that the applicant seeks to make an unreserved apology for any stress and hurt which they may have experienced and of his desire that they may, in due time, seek to communicate with him and perhaps spend time with him, according to their wishes, and in order that each of them might have an opportunity to reconcile with him and thereby enhance the prospect of achieving the benefit of a meaningful relationship with their father in their lives.
15.
Within 21 days of this Order, the Independent Children’s Lawyer confer with each of the children and communicate the effect of these orders.
16.
The applicant father be at liberty to provide a sealed copy of this Order and these Reasons for Judgment to his treating health professionals.
17.
The respondent be at liberty to provide a sealed copy of this Order to any treating health professional or counsellor of herself or the children.
18.
The respondent be permitted to travel with either of the children outside of the Commonwealth of Australia.
19.
The children’s passports shall be held by the respondent.
20.
The respondent has leave to obtain Australian passports for the children, and to renew or replace such passports, and the requirement for the applicant to sign any passport application be dispensed with.
21.
The children be permitted to travel outside of the Commonwealth of Australia for any school and extra-curricular trip and/or camp.
22.
The parties be at liberty to provide a copy of this judgment to a state court.
23.
Within 28 days of this Order, the appointment of the independent children’s lawyer be discharged.
24.
All previous applications and any response be otherwise dismissed.
25.
Pursuant to sections 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 the Fact Sheet attached hereto and these particulars are included in these orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.