Cobb & Papworth - [2023] FedCFamC2F 715

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cobb & Papworth [2023] FedCFamC2F 715

File number(s): PAC 2680 of 2020

Judgment of: JUDGE CARTY

Date of judgment: 16 June 2023

Catchwords: FAMILY LAW – PARENTING –Spend time with arrangements for child with father – consideration of risk of harm to child from exposure to family violence –consideration of the benefit to child of having a meaningful relationship with both parents – parenting capacity – attitude to the responsibilities of parenthood – child’s right to enjoy her Aboriginal culture

Legislation:
Evidence Act 1995 s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, Pt VII

Cases cited:
Blass v Blass (2022) FedCFamC1A 63

Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63

Division: Division 2 Family Law

Number of paragraphs: 218

Date of last submission/s: 30 November 2022

Date of hearing: 21, 22, 23 and 30 November 2022

Place: Newcastle

Counsel for the Applicant: Ms Blackman

Solicitor for the Applicant: Legal Aid NSW

Counsel for the Respondent: Mr Gallimore

Solicitor for the Respondent: Rice More & Gibson Solicitors

Counsel for the Independent Children’s Lawyer Ms Reheby

Solicitor for the Independent Children’s Lawyer SVW Legal
ORDERS

PAC 2680 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS COBB

Applicant

AND:
MR PAPWORTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE CARTY

DATE OF ORDER:

16 June 2023

THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.

Live with order
2.The child X born in 2019 (“the child”) live with the mother.

AND THE COURT FURTHER ORDERS THAT:
Parental responsibility for the child
3.The mother have sole parental responsibility for the child.
4.The mother will notify the father in writing within seven days of her making a decision about a major long-term issue affecting the child, and will provide to the father all relevant details, including the name and address of any medical practitioner or allied health professional who assesses or treats the child, and the name and address of any pre-school or school where the child is enrolled.

Parents to engage with support services
5.The mother will forthwith make contact with, and thereafter engage with, a family support service (“the FSS”) such as B Contact Service, or similar, and complete any program or programs recommended by the FSS.
6.The father will forthwith make contact with, and thereafter engage with, the FSS such as Town C Family Support or similar, and complete any program or programs recommend by the FSS.
7.Each parent will enrol in and complete a D Parenting Program, or equivalent parenting program, within twelve (12) months from the date of these orders.

Spend time arrangements for the child with the father 2023 and 2024
8.The child spend time with the father during 2023 and 2024, unless otherwise agreed as follows:
(a)Until such time as the father provides to the mother’s solicitor a certified copy of the certificate demonstrating that he has completed twenty sessions of the men’s behaviour…

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 Cobb & Papworth

Details

AGLC: Cobb & Papworth [2023] FedCFamC2F 715
Case: [2023] FedCFamC2F 715
Decision Date

CaseChat Overview and Summary

This case involved a parenting dispute between Ms Cobb and Mr Papworth, the parents of a young child. The court was required to determine the best interests of the child in relation to living arrangements, parental responsibility, and the nature of the child's time with each parent. Key issues included the risk of harm to the child from exposure to family violence and the benefit to the child of having a meaningful relationship with both parents.

The court found that while both parents had perpetrated family violence, the risk of harm to the child from exposure to family violence was slight, particularly if certain conditions were met. The court was satisfied that the father had the capacity to provide for the child's needs and that the child would benefit from spending regular and consistent time with him. The court also found that the mother had sole parental responsibility for the child, as it was not in the child's best interests for the parents to have equal shared parental responsibility.

The court ordered that the child live with the mother and spend time with the father under supervision initially, transitioning to unsupervised time once the father completed certain programs and met other conditions. The court also made orders to protect the child from exposure to family violence and to ensure that the parents do not make negative comments about each other in the child's presence. The court further ordered that the parents engage with family support services and parenting programs to enhance their parenting skills.

In summary, the court balanced the need to protect the child from harm against the benefit to the child of having a meaningful relationship with both parents, and determined that the child's best interests would be served by spending regular and consistent time with the father, subject to certain conditions being met.

Orders