COLLINS & RICARDO - [2017] FamCA 882

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO

[2017] FamCA 882

FAMILY LAW – CHILDREN – FINAL – Where previous final orders provided for the child to live with the mother and have supervised recognition time with the father – Where such previous final orders established that the father presented an unacceptable risk of harm to the child – Where there is a failure of evidence to establish that the father no longer poses an unacceptable risk of harm – Where there is an ongoing high degree of conflict between the parties – Where the father has not spent time with the child since March 2015 – Where there is an absence of a relationship between the father and the child – Where the child has a close relationship with the mother – Where there is a likelihood of continued conflict if any provision is made for communication between the child and the father – Where the previous final orders are varied to provide for the father to spend no time and have no communication with the child.

FAMILY LAW – PRACTICE AND PROCEDURE – Where there are several outstanding applications – Where there is no utility in the continuation of the outstanding applications – Where all outstanding applications are dismissed – Where it is found that the father has frequently conducted vexatious proceedings – Where a vexatious proceedings order against the father is made.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Bennett & Bennett (1991) FLC 92-191
Cannon & Acres [2014] FamCA 104

Chranley & Smart (2012) 47 Fam LR 581
Doherty & Doherty [2016] FamCAFC 182

Goode & Goode (2006) FLC 93-286

Kettle & Baker [2014] FamCAFC 85
Kovacs & Graham [2015] FamCAFC 98

M & M (1988) 166 CLR 69

Mankiewicz & Swallow (2016) FLC 93-725
Marsden & Winch (2013) FLC 93-560
Miller & Harrington (2008) FLC 93-383
Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725

SCVG & KLD (2014) FLC 93-582

SPS and PLS (2008) FLC 93-363

APPLICANT:

Mr Collins

RESPONDENT:

Ms Ricardo

FILE NUMBER:

SYC

4959

2009

DATE DELIVERED:

29 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

4, 5, 6 September 2017

REPRESENTATION

FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Trevino

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

Orders

The order made by the Honourable Justice Watts on 12 January 2012 be discharged save for paragraphs 2 and 4 which are in the following terms:
(2) The mother shall have sole parental responsibility for the child S born … 2008.
(4) the child shall live with the mother.
The father shall spend no time with the child.
Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) the father be prohibited from instituting proceedings against Ms Ricardo under this Act in a court having jurisdiction under this Act and…

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 COLLINS & RICARDO

Details

AGLC: COLLINS & RICARDO [2017] FamCA 882
Case: [2017] FamCA 882
Decision Date: 29 September 2017

CaseChat Overview and Summary

In the matter of *Collins & Ricardo*, heard by Carew J, the dispute concerned final orders relating to a child. Previous final orders had stipulated that the child live with the mother and have supervised recognition time with the father, having established that the father posed an unacceptable risk of harm to the child.

The court was required to determine whether the father no longer posed an unacceptable risk of harm to the child, given the absence of evidence to that effect. Further issues included the ongoing high degree of conflict between the parties, the father's lack of contact with the child since March 2015, the absence of a relationship between the father and child, the child's close relationship with the mother, and the likelihood of continued conflict if any communication between the child and father were permitted. The court also considered several outstanding applications and whether they had any utility.

Carew J reasoned that the failure of evidence to establish that the father no longer posed an unacceptable risk of harm, coupled with the significant conflict and lack of relationship, warranted a variation of the previous orders. The court applied principles of child welfare and the need to protect the child from harm and ongoing conflict. The court found that the father had frequently conducted vexatious proceedings and made an order prohibiting him from instituting further proceedings under the *Family Law Act 1975* (Cth) pursuant to s 102QB(2).

The court ordered that the previous final orders be discharged, save for those granting the mother sole parental responsibility and stipulating the child live with the mother. The father was ordered to spend no time with and have no communication with the child. All outstanding applications filed by both parties were dismissed, and a vexatious proceedings order was made against the father.

Orders

Orders of the court

The order made by the Honourable Justice Watts on 12 January 2012 be discharged save for paragraphs 2 and 4 which are in the following terms:

(2) The mother shall have sole parental responsibility for the child S born … 2008.

(4) the child shall live with the mother.

The father shall spend no time with the child.

Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) the father be prohibited from instituting proceedings against Ms Ricardo under this Act in a court having jurisdiction under this Act and all outstanding applications filed by the father be dismissed.

All outstanding applications filed by the mother be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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