Curtis & Garnett - [2023] FedCFamC2F 326

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Curtis & Garnett [2023] FedCFamC2F 326

File number: PAC 2578 of 2021

Judgment of: JUDGE STREET

Date of judgment: 24 March 2023

Catchwords: FAMILY LAW – PARENTING - leave to legal representative to withdraw- undefended hearing – mother sole parental responsibility- children live with mother – no contact with father

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 69ZM, 69ZN

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Federal Circuit Court and Family Court of Australia (Family Law) Rules rr 1.04, 1.33, 3.10, 10.26, 10.27

Cases cited:

A v A (1998) FLC 92-800

A & Z [2006] FamCA 179

Cotton & Cotton (1983) FLC 91-330

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fitzwater & Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Isles & Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Lanceley & Lanceley [1994] FamCA 94

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Masson v Parsons (2019) 266 CLR 554

McCall & Clark (2009) FLC 93-405

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Stott & Holgar [2017] FamCAFC 152

Zane & Allen [2008] FamCAFC 115

Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.

Division: Division 2 Family Law

Number of paragraphs: 85

Date of hearing: 23 February 2023

Place: Sydney

Solicitor for the Applicant: Ms K Ziayee of Supreme Justice Lawyers

Counsel for the Respondent: Mr L Reeves

Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd

Counsel for the Independent Children's Lawyer: Mr L Fermanis

Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates
ORDERS

PAC 2578 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CURTIS

Applicant

AND:
MS GARNETT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE STREET

DATE OF ORDER:

23 February 2023

THE COURT ORDERS THAT:
1.The matter proceed on an undefended basis.
2.Leave is granted to the applicant’s solicitor to withdraw from the proceedings in circumstances where the applicant father has failed to attend the hearing.
3.That X (born in 2006) and Y (born in 2008) live with the respondent mother.
4.That the respondent mother shall have sole parental responsibility for the children X born in 2006 and Y born in 2008 (“the children”).
5.The applicant father shall have no contact with the children except as requested by them.
6.The applicant father is restrained by way of injunction from removing the children from school.
7.The applicant father is restrained by way of injunction from attending the respondent mother’s house.
8.The ICL in this matter is discharged.
9.The Court reserves its…

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 Curtis & Garnett

Details

AGLC: Curtis & Garnett [2023] FedCFamC2F 326
Case: [2023] FedCFamC2F 326
Decision Date

CaseChat Overview and Summary

Curtis and Garnett were married and have two children, X and Y. The case involved parenting proceedings initiated by the father, Curtis, seeking changes to the existing parenting arrangements. The matter was heard on an undefended basis as Curtis did not attend the hearing. The Court granted leave for Curtis's solicitor to withdraw and ordered that the children live with the mother, Garnett, who was awarded sole parental responsibility. Curtis was prohibited from contacting the children and the mother. The Court considered the evidence presented by Garnett, including allegations of domestic violence, and found that there was an unacceptable risk of harm to the children if they were to have contact with Curtis. The Court determined that it was in the best interests of the children to have no contact with Curtis and to remain in the care of Garnett. The Court also considered the views of the children, their relationship with their parents, and the history of family violence in making its decision. The Court's orders were made to provide stability and protection for the children in their final years of schooling.

Orders