Conan & Mott (No 2) - [2023] FedCFamC2F 223

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conan & Mott (No 2) [2023] FedCFamC2F 223

File number(s): MLC 10140 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 3 March 2023

Catchwords: FAMILY LAW – final parenting orders – father seeks resumption of previous final orders – risk of family violence – where child impact report family consultant cross-examined – problems where child impact report not released to a litigant in person – where section 65DAA presumption rebutted – orders for only time as agreed in writing – orders for sole parental responsibility.

Legislation:
Crimes Act 1914 (Cth)

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), s 60CA, 60CC, 60CG, 65DAA, 65DAC

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Boyd & Sage [2020] FamCA 482

Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336.

Fox v Percy (2003) 214 CLR 118.

Division: Division 2 Family Law

Number of paragraphs: 188

Date of hearing: 9 & 10 February 2023

Place: Melbourne

Counsel for the Applicant: Ms A. Agresta

Solicitor for the Applicant: Fair Family Law

Counsel for the Respondent: Mr T. Byrne

Solicitor for the Respondent: RRR Lawyers

Counsel for the Independent Children's Lawyer: Mr R. Allen

Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers
ORDERS

MLC 10140 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MOTT

Applicant

AND:
MR CONAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

3 MARCH 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the child X born in 2017 (‘the child’).
3.The child live with the Mother.
4.The child spend time and communicate with the Father at such times as agreed with the Mother in writing and on such conditions as agreed with the Mother in writing.
5.The Mother be at liberty to make a sole application for a passport for the child.
6.The Mother keep the Father advised via email of any serious illness or injury suffered by the child as soon as practicable following the onset of the illness or occurrence of the injury.
7.The parties, their servants or agents are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party with or in the presence of the child and from permitting any other person to do so; and
(b)Discussing these proceedings with or in the presence of the child and from permitting any other person to do so.

8.The Independent Children’s Lawyer be discharged.
9.All extant applications are otherwise dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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…

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 Conan & Mott (No 2)

Details

AGLC: Conan & Mott (No 2) [2023] FedCFamC2F 223
Case: [2023] FedCFamC2F 223
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, presided over by Judge O'Shannessy, addressed the case of Conan & Mott (No 2). The central dispute involved the determination of final parenting orders concerning a child born in 2017. The Applicant, Ms Mott, sought sole parental responsibility and restrictions on the Respondent, Mr Conan's, time with the child, citing risks of family violence and the Father's emotional instability. The Court was required to decide on the appropriate parenting orders considering the best interests of the child, in light of the parties' dispute over the Father's suitability to have unsupervised time with the child due to his emotional and mental health issues and history of family violence.

The Court's reasoning was grounded in the statutory framework provided by the Family Law Act 1975 (Cth), particularly sections 60CA, 60CC, and 65DAC. It considered the primary considerations of the child's best interests, emphasizing the need to protect the child from harm, alongside the benefit of maintaining a relationship with both parents. The Court also took into account additional considerations such as the nature of the relationship between the child and each parent, the capacity of each parent to provide for the child's needs, and the risk of family violence.

Judge O'Shannessy found that the Father's emotional instability and history of family violence posed significant risks to the child's safety and wellbeing. Despite the child's affection for her father, the Court determined that it was not in the child's best interests to have unsupervised time with her father, given the potential for emotional and psychological harm. The Court also found that the Father's refusal to participate in a supervised time arrangement or undertake necessary assessments undermined his capacity to safely parent the child at that time.

In conclusion, the Court ordered sole parental responsibility to the Mother, restricted the Father's time with the child to terms agreed in writing, and prohibited the Father from abusing, insulting, or denigrating the Mother in the presence of the child. These orders were made to protect the child from the identified risks and to ensure her safety and wellbeing.

Orders