Duvall & Duvall

Case [2024] FedCFamC2F 1395


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Duvall & Duvall [2024] FedCFamC2F 1395

File number(s): PAC 5213 of 2022
Judgment of: JUDGE OBRADOVIC
Date of judgment: 9 October 2024
Catchwords: FAMILY LAW – PARENTING – Undefended hearing as against the father – Where the paternal grandfather and paternal uncle make the same application for time with the child – Findings of family violence – Mother’s evidence mostly uncontradicted – Father incarcerated at the time of hearing – Father pled guilty and convicted of a serious criminal offence relating to a member of the mother’s family –Where the father has not spent time with the child since his incarceration – Child to spend no time with the father or the paternal family – Where order for the mother to have sole decision-making for long-term issues is in the best interests of the child  
Legislation: Family Law Act 1975 (Cth) ss 4AB(3), 60CC, 60CG, 61C, 61D, 61DAA, 64C
Cases cited:

Aldridge & Keaton (2009) FLC 93-421

Bain v Bain (2017) 319 FLR 119

Maldera v Orbel (2014) FLC 93-602

Mizushima & Crocetti [2024] FedCFamC1F 113

Valentine & Lacerra (2013) FLC 93-539

Division: Division 2 Family Law
Number of paragraphs: 192
Date of last submission/s: 24 July 2024
Date of hearing: 11-12 June 2024
Place: Parramatta
Counsel for the Applicant: Ms Druitt
Solicitor for the Applicant: Bell Lawyers
Appearance for the First Respondent: No appearance
Counsel for the Second Respondent: Mr Rosic
Solicitor for the Second Respondent: S & R Lawyers
Counsel for the Third Respondent: Mr Rosic
Solicitor for the Third Respondent: S & R Lawyers
Counsel for the Independent Children's Lawyer: Mr Schroder
Solicitor for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law

ORDERS

PAC 5213 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DUVALL

Applicant

AND:

MR DUVALL

First Respondent

MR B DUVALL

Second Respondent

MR C DUVALL

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

9 OCTOBER 2024

THE COURT ORDERS THAT:

1.All prior parenting Orders are discharged.

2.The mother is solely responsible for decisions about major long-term issues in relation to X, born 2018 (‘child’).

3.The child live with the mother.

4.The child spend no time with the father.

5.The child spend no time with the second respondent.

6.The child spend no time with the third respondent.

7.The mother may apply for a passport for the child without first obtaining the consent of the father.

8.The mother is solely responsible for making decisions in relation to the child for the purposes of applying for and being issued with an Australian passport for the child.

9.For the purposes of s 11 of the Australian Passport Act 2005 (Cth), the child is permitted to have an Australian passport.

10.The mother be permitted to take the child from the Commonwealth of Australia to such locations as she shall determine without any requirement to disclose to the father such locations or destinations.

11.Pursuant to s 68B of the

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AGLC
Duvall & Duvall [2024] FedCFamC2F 1395
Case
[2024] FedCFamC2F 1395
Decision Date

CaseChat Overview and Summary

Duvall & Duvall involved an application by the maternal grandfather and uncle for parenting time with a child, X, born in 2018. The application was heard by Judge Obradovic in the Federal Circuit and Family Court of Australia. The father, who was incarcerated at the time of the hearing, had not spent time with the child since his incarceration and had pled guilty to and been convicted of a serious criminal offence relating to a member of the mother's family. The mother's evidence was largely uncontradicted, and findings of family violence had been made against the father. The court was required to determine whether the paternal grandfather and uncle should have any time with the child and whether the mother should have sole decision-making power over long-term issues for the child's best interests.

The court considered the evidence presented and the factors outlined in the Family Law Act 1975 (Cth). It found that the father's incarceration and criminal conduct, along with the findings of family violence, made it unsafe for the child to spend time with him or the paternal family. The court concluded that the child should live with the mother and have no contact with the father or paternal family. It also determined that it was in the child's best interests for the mother to have sole decision-making power over long-term issues, including the application for and issuance of an Australian passport for the child.

The court issued orders discharging all prior parenting orders and granting the mother sole responsibility for decisions about major long-term issues in relation to the child. The child was ordered to live with the mother and have no contact with the father or paternal family. The mother was permitted to apply for a passport for the child without the father's consent and was granted sole responsibility for making decisions regarding the child's passport. The court also issued an injunction restraining the father from contacting the mother or child, entering certain places, or attempting to take possession of the child. These orders were made for the personal protection of the mother and child and carried the power of arrest without warrant.

Orders

Orders of the court

PAC 5213 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DUVALL

Applicant

AND:

MR DUVALL

First Respondent

MR B DUVALL

Second Respondent

MR C DUVALL

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

9 OCTOBER 2024

THE COURT ORDERS THAT:

1. All prior parenting Orders are discharged.

2. The mother is solely responsible for decisions about major long-term issues in relation to X, born 2018 (‘child’).

3. The child live with the mother.

4. The child spend no time with the father.

5. The child spend no time with the second respondent.

6. The child spend no time with the third respondent.

7. The mother may apply for a passport for the child without first obtaining the consent of the father.

8. The mother is solely responsible for making decisions in relation to the child for the purposes of applying for and being issued with an Australian passport for the child.

9. For the purposes of s 11 of the Australian Passport Act 2005 (Cth), the child is permitted to have an Australian passport.

10. The mother be permitted to take the child from the Commonwealth of Australia to such locations as she shall determine without any requirement to disclose to the father such locations or destinations.

11. Pursuant to s 68B of the Family Law Act 1975 (Cth), an injunction is hereby issued restraining the father, Mr Duvall born 1988, whether by himself, his servants, or agents from:

(a) Entering or remaining in a place of residence, employment, or education of the mother, Ms Duvall born 1986, or the child, or a place where the child is receiving or attending to receive the benefit of medical, educational, or other professional services, or from attempting to enter such place or places;

(b) Using a carriage service or social media to make contact with, message, or communicate with the mother or the child, or to publish or interact with via social media application, any material or content concerning the child or the mother for any reason;

(c) Taking possession of the child or attempting to do so; and

(d) Instructing or requesting any other person to do any of the acts referred to in Orders 11(a) to 11(c) inclusive.

12. The above Order 11 is made for the personal protection of the mother and the child and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Family Law Act 1975 (Cth).

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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