De Luca & Farnham - [2022] FedCFamC1F 907

Federal Circuit and Family Court of Australia
(DIVISION 1)
De Luca & Farnham [2022] FedCFamC1F 907

File number(s): SYC 4550 of 2022

Judgment of: SMITH J

Date of judgment: 6 October 2022

Catchwords: FAMILY LAW – PARENTING – Ex tempore judgment – Interim parenting orders for two children – Where previous orders were made on a final basis – Where the mother raises allegations of ongoing family violence – Where the father says the mother is trying to alienate him from the children – Where the older child has ceased spending time with the father and says she consequently no longer feels the need to self-harm –Where the mother seeks supervised time between the father and the younger child – Where the father seeks unsupervised time with the younger child but seeks no time if time if supervision is required – Where there is a unacceptable and psychological risk to the younger child spending unsupervised time with the father – Ordered that the mother have sole parental responsibility and for the children to live with her – Ordered that the father and the younger child have telephone communication once a week

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Banks & Banks [2015] FamCAFC 36

Deiter & Deiter [2011] FamCAFC 82

Eaby v Speelman [2015] FamCAFC 104

Goode & Goode [2006] FamCA 1346

M & M (1988) 82 ALR 577

Marvel & Marvel [2010] FamCAFC 101

Mazorski & Albright [2007] FamCA 520

SS & AH [2010] FamCAFC 13

Stott & Holgar [2017] FamCAFC 152

Division: Division 1 First Instance

Number of paragraphs: 65

Date of last submission/s: 6 October 2022

Date of hearing: 4 August 2022; 6 October 2022

Place: Heard in Sydney on 4 August 2022, heard via Video link on 6 October 2022

Solicitor Advocate for the Applicant Ms Forrest

Solicitor for the Applicant Caroline McKenzie Legal

Solicitor for the Respondent Litigant in person

Solicitor Advocate for the Independent Children’s Lawyer Mr Samuel

Solicitor for the Independent Children’s Lawyer Brian Samuel & Associates
ORDERS

SYC 4550 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DE LUCA

Applicant

AND:
MR FARNHAM

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SMITH J

DATE OF ORDER:

THE COURT ORDERS THAT:
1.The matter be adjourned to a date to be fixed by a Judicial Registrar in Sydney.
2.The Applicant mother, Ms De Luca born 1977, have sole parental responsibility for making decisions about the long term care, welfare and development of X born 2009, and C born 2013 (“the children”).
3.The children live with the Applicant mother.
4.The child C be available for a telephone call with the Respondent father, Mr Farnham born 1997, between 7-8 p.m. each Wednesday and that call is to be initiated by the father.
5.The parties will advise each other of any change of telephone number or residential address within 4 hours of such change.
6.The parties are restrained by injunction from criticising or denigrating the other party or the other parties family…

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 De Luca & Farnham

Details

AGLC: De Luca & Farnham [2022] FedCFamC1F 907
Case: [2022] FedCFamC1F 907
Decision Date

CaseChat Overview and Summary

In this interim parenting matter, the Federal Circuit and Family Court of Australia addressed the dispute between the applicant mother, Ms De Luca, and the respondent father, Mr Farnham, regarding the care and welfare of their two children, X and C. The parents had a history of high conflict and had separated almost a decade ago. The court heard allegations of ongoing family violence, coercion, and control, with the mother claiming that X's self-harming behaviours were a result of the father's conduct, and that C was scared of the father. The father alleged that the mother was trying to alienate him from the children. The matter came before the court for an interim hearing to determine the appropriate parenting orders for the children.

The court considered the evidence presented by both parties and the Child Impact Report, which highlighted the children's concerns about their safety and well-being. The court found that the father's own admission to the Court Child Expert that he believed the mother was delusional, manipulative, and controlling, and his use of denigrating language towards her, raised significant concerns about his suitability as a parent. The court also found that there was an unacceptable risk of psychological harm to C if he spent unsupervised time with the father. Consequently, the court made orders for the mother to have sole parental responsibility, for the children to live with her, and for the father and the younger child to have supervised telephone communication once a week. The court also made procedural orders to protect the children from the ongoing conflict between their parents.

Orders