Dodd & Ferrell - [2022] FedCFamC2F 1763

Federal Circuit and Family Court of Australia
(DIVISION 2)
Dodd & Ferrell [2022] FedCFamC2F 1763

File number(s): ADC 4059 of 2022

Judgment of: JUDGE BROWN

Date of judgment: 20 December 2022

Catchwords: FAMILY LAW – Interim parenting proceedings – child aged 2 years old – father seeks supervised time spending – mother proposes no time spending – where father is facing criminal charges – significant issues relating to family violence – where the child has been exposed to family violence – coercive and controlling behaviour – nature of interim hearing – assessment of risk – matters to be considered

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 69ZW, 91B

Intervention Orders (Prevention of Abuse) Act 2000 (SA)

Cases cited:
Amador & Amador [2009] FamCAFC 196

B & B (1993) 16 Fam LR 353

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Garrod & Davenort [2018] FamCA 825

Goode & Goode (2006) FLC 93-286

In The Marriageof Patsalou (1994) 18 Fam LR 426

JG & BG (1994) 18 Fam LR 255

Jurchenko & Foster (2014) 51 Fam LR 588

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 Fam LR 518

SS v AH [2010] FamCAFC 13

W & W (abuse allegations: unacceptable risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 98

Date of hearing: 14 December 2022

Place: Adelaide

Counsel for the Applicant: Mr Tredrea

Solicitor for the Applicant: Andrew Hill & Co

Counsel for the Respondent: Ms Lindsay

Solicitor for the Respondent: Women’s Legal Service

Counsel for the Department for Child Protection: Ms Sanders

Solicitor for the Department for Child Protection: Crown Solicitor’s Office
ORDERS

ADC 4059 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DODD

Applicant

AND:
MS FERRELL

Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

20 December 2022

THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to represent the interests of the child X (hereinafter referred to as “the child”) born in 2020 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia at ICL@lsc.sa.gov.au within 7 days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said child such as to be in a position to make submissions to the Court on the adjourned date.
2.Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
3.The child live with the mother.
4.The mother be conferred with sole parental responsibility for the child.
5.Pursuant to s 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the child are directed to attend with a Court…

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 Dodd & Ferrell

Details

AGLC: Dodd & Ferrell [2022] FedCFamC2F 1763
Case: [2022] FedCFamC2F 1763
Decision Date

CaseChat Overview and Summary

These reasons for judgment relate to interim parenting proceedings involving significant issues of family violence, which involve a child of tender years. The parties to the proceedings are X’s parents – his father, Mr Dodd, and his mother, Ms Ferrell. The father has not spent time with X since June 2022. The mother’s position is that neither the July 2021 matter nor the more recent one can be regarded as being isolated incidents but rather each is symptomatic of a long-standing pattern of the father and his family exercising violent control over her, to which X has also been exposed. The father proposes that he spend time, with X, on alternate Saturdays, between 11.00am and 3.00pm. At this stage, given the gravity of his circumstances, he concedes that the time needs to take place in the presence of an independent supervisor and, in this respect, he proposes his mother, Ms C, who knows X well and who would be protective of him. The court is required to assess the risk arising for X of the various outcomes available in the case. In this case, the risk is multi-faceted and complex and comprises the following elements: the personal and emotional safety of Ms Ferrell as a person who asserts she has been the subject of serious and protracted family violence; the implications for Ms Ferrell’s sense of personal resilience if orders are made for the father to spend time with X, which cause her to feel unsafe and threatened and the ramifications of this for X and Ms Ferrell’s capacity to provide the best standard of care for X; the risk of X losing the capacity to have a meaningful level of relationship with his father, due to delays in CCC’s; and the risk or otherwise of Ms C as a supervisor. The court has ordered that the child live with the mother. The mother be conferred with sole parental responsibility for the child. The parties and the child are directed to attend with a Court Child Expert for the purposes of the preparation of a Child Impact Report. The mother be restrained and an injunction granted restraining her from relocating the child’s principal place of residence from the metropolitan area of Adelaide, in the State of South Australia. The father be restrained and an injunction granted restraining him from contacting and/or making threats against the mother and to the mother’s family. Further consideration of the matter is adjourned to 13 April 2023 at 9.30am for directions NOTING the proceedings will be conducted face to face at Court.

Orders