Dalby & Jemmet (No 2) - [2023] FedCFamC2F 800

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dalby & Jemmet (No 2) [2023] FedCFamC2F 800

File number(s): ADC 2661 of 2021

Judgment of: JUDGE MCGINN

Date of judgment: 4 July 2023

Catchwords: FAMILY LAW – Parenting orders and injunctions – final consent orders but outstanding issues regarding parent’s presence during other parent’s time – injunctions – role of paramountcy of children’s interest – family violence – children’s welfare - s 68B considerations – orders made

Legislation: Family Law Act 1975 (Cth)

Cases cited: Hedlund & Hedlund [2021] FedCFamC1A 84

Division: Division 2 Family Law

Number of paragraphs: 332

Date of last submission/s: 7 November 2022

Date of hearing: 6-7 September 2022

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Carmen Wood & Associate

Counsel for the Respondent: Mr Anderson

Solicitor for the Respondent: Clelands Lawyers Adelaide Pty Ltd
ORDERS

ADC 2661 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DALBY

Applicant

AND:
MR JEMMET

Respondent

order made by:

JUDGE MCGINN

DATE OF ORDER:

4 JULY 2023

IT IS ORDERED:
1.That the orders with injunction made 20 December 2021 be discharged.
2.That pursuant to s 68B of the Family Law Act 1975 (Cth) the father be restrained and an injunction is hereby granted restraining him from:
(a)attending upon the children X and Y’s (both born in 2012) school grounds at times the children are not in the father’s care pursuant to the terms of the order of 21 July 2021 SAVE AND EXCEPT for the specific purpose of attending:
(i)school functions in the nature of presentations, end of year assemblies, concerts, school excursions and parent/teacher interviews; and/or
(ii)for the purpose of fulfilling any role as class representative for either of the children’s classes.

(b)attending at any extracurricular activity the children are participating in at times when the children are not in the father’s care pursuant to the terms of the order of 21 July 2022 including but not limited to weekly tuition or training sessions and competitive events save and except for;
(i)end of year or season presentations; or
(ii)where the mother’s written consent has otherwise been first had and obtained.

3.That it be a condition of the father exercising an ability to attend at events as an exception to order 2(a) or 2(b)(i) that he provide 7 days written notice to the mother of his intention to so attend such an event.
4.That the mother’s Further Amended Initiating Application filed 15 August 2022 and the father’s Second Amended Response to Initiating Application filed on 12 August 2022 do otherwise stand dismissed.

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…

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 Dalby & Jemmet (No 2)

Details

AGLC: Dalby & Jemmet (No 2) [2023] FedCFamC2F 800
Case: [2023] FedCFamC2F 800
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) heard the case of Dalby v Jemmet, concerning the parenting arrangements and injunctions for the children, X and Y, born in 2012. The case involved the final consent orders for the children's living arrangements and the dispute over the parents' presence during each other's time. The mother sought an injunction to prevent the father from attending school events and extracurricular activities while the children were in her care. The father opposed this, suggesting that each parent should be allowed to attend such events, provided they did not communicate with each other. The court considered the parties' evidence, the Family Law Act 1975, and the Family Assessment Report to determine the best interests of the children.

The court found that the father's conduct towards the mother, including instances of family violence, had caused her to be fearful. The mother also expressed concerns about the father's influence on the children, particularly in relation to his negative views of her and her husband. The children, X and Y, were found to be experiencing anxiety and discomfort when both parents were present at events, which the court considered to be detrimental to their well-being. The court determined that the father's involvement in extracurricular activities during the mother's time with the children should be limited, and that the father should not attend school events or extracurricular activities when the children were in the mother's care. The court also required the father to provide the mother with 7 days' notice before attending any permitted events during her time with the children.

The court's decision was based on the best interests of the children, taking into account the primary and additional considerations outlined in section 60CC of the Family Law Act 1975. The court acknowledged the importance of the children's relationship with both parents and sought to protect them from exposure to family violence and psychological harm. The court also considered the statutory considerations of the Family Law Act 1975 and the principles underlying the Act, as well as the principles of injunctive relief. The final orders were made in the best interests of the children, X and Y, and aimed to facilitate their relationship with both parents in a respectful and supportive manner.

Orders