Dahlmans & Dahlmans - [2021] FedCFamC2F 21

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dahlmans & Dahlmans [2021] FedCFamC2F 21

File number(s): PAC 438 of 2021

Judgment of: JUDGE MYERS

Date of judgment: 3 September 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – review of Registrar’s decision – application for a review of an interim parenting decision – equal shared parental responsibility – relocation

Legislation:
Crimes Act 1900 (NSW), ss 61AA(1), 61AA(2)

Family Law Act 1975 (Cth), ss 60CC(2), 60CC(3)

Federal Circuit Court Act of Australia Act 1999 (Cth), ss 104(2), 104(3)

Cases cited:
Browne & Keith [2015] FamCAFC 143

C & S [1998] FamCA 66

Morgan & Miles (2007) FamCA 1230

MRR v GR (2010) 240 CLR 461

Other:

United Nations Committee on the Rights of the Child, General Comment No 8: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading forms of Punishment, 42nd sess, UN Doc CRC/C/GC/8 (2 March 2007).

Division: Division 2 Family Law

Number of paragraphs: 145

Date of hearing: 11 August 2021

Place: Parramatta

Counsel for the Applicant: Ms Spain

Counsel for the Respondent: Mr Blackah

Solicitor for the Independent Children's Lawyer: Mr MacDiarmid
ORDERS

PAC 438 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DAHLMANS

Applicant

AND:
MS DAHLMANS

Respondent

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

3 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The Court confirms the Orders made by Senior Registrar Crawford on 2 June 2021, subject to the following amendments:
(a)The time provided at Order 4.1 shall be increased where time on alternate weekends shall commence at 1:00pm Saturday, until 1:00pm Sunday; and
(b)That the requirement for supervision by Families O in Sydney be removed, where the Father is supervised by any of those persons listed at Order 5 of the orders made by Senior Registrar Crawford.
(c)That Order 5a shall be amended to include the Maternal Uncle Mr B being a person who may supervise the Father’s time, subject to Mr B providing an undertaking in the terms provided for at Order 5B.

2.That a Limited Issues Report be prepared that covers the following issues:
(a)Whether the Mother is engaging in behaviours that are designed to align the Children against the Father.
(b)Whether the Children are being subjected by the Mother to systems abuse through the Mother’s engagement of the Children with victims counselling.
(c)Whether the Children and Mother’s relationship is, or is at risk of, becoming enmeshed such that the Children should not be home-schooled by the Mother.
(d)Whether the Mother’s mental health is sufficiently well managed, such that the Mother possesses the capacity to provide for the Children’s intellectual needs, particularly where they are home-schooled by the mother.

3.That these Orders shall operate as an authority so as to allow the Father and any supervisor nominated by these Orders to travel outside of the Greater Sydney region for the purposes of spending time with the Children (X born in 2014, Y born in 2012, and Z…

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 Dahlmans & Dahlmans

Details

AGLC: Dahlmans & Dahlmans [2021] FedCFamC2F 21
Case: [2021] FedCFamC2F 21
Decision Date: 3 September 2021

CaseChat Overview and Summary

In this matter, the applicant, Mr Dahlmans, sought a review of an interim parenting decision made by a Senior Registrar. The dispute centred around the equal shared parental responsibility for three children, and the relocation of the children to a different town. The matter was heard in the Federal Circuit and Family Court of Australia, Division 2. The legal issues before the court included whether the mother was engaging in behaviours that were designed to align the children against the father, whether the children were being subjected to systems abuse, whether the mother and children's relationship was becoming enmeshed, and whether the mother's mental health was sufficiently well managed.
The court confirmed the orders made by the Senior Registrar, subject to certain amendments. The court also ordered a Limited Issues Report to be prepared to address the legal issues before it. The court held that the matter should be listed for further Interim Hearing to determine whether the requirement for the father's time being supervised should be lifted. The matter was adjourned for Interim Hearing on 15 December 2021 at 10:00am.

Orders

Orders of the court

PAC 438 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR DAHLMANS

Applicant

AND:

MS DAHLMANS

Respondent

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

3 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. The Court confirms the Orders made by Senior Registrar Crawford on 2 June 2021, subject to the following amendments:

(a) The time provided at Order 4.1 shall be increased where time on alternate weekends shall commence at 1:00pm Saturday, until 1:00pm Sunday; and

(b) That the requirement for supervision by Families O in Sydney be removed, where the Father is supervised by any of those persons listed at Order 5 of the orders made by Senior Registrar Crawford.

(c) That Order 5a shall be amended to include the Maternal Uncle Mr B being a person who may supervise the Father’s time, subject to Mr B providing an undertaking in the terms provided for at Order 5B.

2. That a Limited Issues Report be prepared that covers the following issues:

(a) Whether the Mother is engaging in behaviours that are designed to align the Children against the Father.

(b) Whether the Children are being subjected by the Mother to systems abuse through the Mother’s engagement of the Children with victims counselling.

(c) Whether the Children and Mother’s relationship is, or is at risk of, becoming enmeshed such that the Children should not be home-schooled by the Mother.

(d) Whether the Mother’s mental health is sufficiently well managed, such that the Mother possesses the capacity to provide for the Children’s intellectual needs, particularly where they are home-schooled by the mother.

3. That these Orders shall operate as an authority so as to allow the Father and any supervisor nominated by these Orders to travel outside of the Greater Sydney region for the purposes of spending time with the Children (X born in 2014, Y born in 2012, and Z born in 2009), in Town C NSW.

4. That these Orders shall operate as an authority so as to allow the Mother and Children to travel to Sydney, and return to Town C NSW, for the purpose of the Father spending time with the Children.

5. That a Child Inclusive Conference be held in late November with a Memorandum to be prepared in time for the next Interim Hearing.

6. That the matter be listed for further Interim Hearing to determine whether the requirement for the father’s time being supervised be lifted.

7. The matter is adjourned for Interim Hearing on 15 December 2021 at 10:00am.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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File number(s):	PAC 438 of 2021
Judgment of:	JUDGE MYERS
Date of judgment:	3 September 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – review of Registrar’s decision – application for a review of an interim parenting decision – equal shared parental responsibility – relocation
Legislation:	Crimes Act 1900 (NSW), ss 61AA(1), 61AA(2) Family Law Act 1975 (Cth), ss 60CC(2), 60CC(3) Federal Circuit Court Act of Australia Act 1999 (Cth), ss 104(2), 104(3)
Cases cited:	Browne & Keith [2015] FamCAFC 143 C & S [1998] FamCA 66 Morgan & Miles (2007) FamCA 1230 MRR v GR (2010) 240 CLR 461 Other: United Nations Committee on the Rights of the Child, General Comment No 8: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading forms of Punishment, 42nd sess, UN Doc CRC/C/GC/8 (2 March 2007).
Division:	Division 2 Family Law
Number of paragraphs:	145
Date of hearing:	11 August 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Spain
Counsel for the Respondent:	Mr Blackah
Solicitor for the Independent Children's Lawyer:	Mr MacDiarmid

PAC 438 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DAHLMANS Applicant
AND:	MS DAHLMANS Respondent

ORDER MADE BY:	JUDGE MYERS
DATE OF ORDER:	3 SEPTEMBER 2021