Encela & Rillo - [2022] FedCFamC2F 1696

Federal Circuit and Family Court of Australia
(DIVISION 2)
Encela & Rillo [2022] FedCFamC2F 1696

File number(s): MLC 2204 of 2016

Judgment of: JUDGE BLAKE

Date of judgment: 5 December 2022

Catchwords: FAMILY LAW – Undefended hearing – judgment in default – where Father presents as a real risk to the children – best interests– warrant making orders in the form sought by the Mother – children live with the Mother and spend time with the Father according to their wishes – best interests of child that Mother have sole parental responsibility.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 61DA(40, 61DA(4), 68Q

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.33, 2.25, 2.26, 3.10(2), 10.6, 10.26(2)(c), 10.27, 15.19(2)

Cases cited:
Kleine & Kleine [2021] FedCFamC1F 51

Oberlin& Infield [2021] FamCAFC 66

Zane & Allan [2008] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 51

Date of hearing: 5 December 2022

Place: Melbourne

Counsel for the Applicant: Mr Moore

Solicitor for the Applicant: Ryan Carlisle Thomas

Advocate for the Respondent: No Appearance

Solicitor for the Respondent: None

Advocate for the Independent Children's Lawyer:
Mr Bult

Solicitor for the Independent Children's Lawyer:
Victoria Legal Aid

ORDERS

MLC 2204 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RILLO

Applicant

AND:
MR ENCELA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BLAKE

DATE OF ORDER:

5 December 2022

THE COURT ORDERS THAT:
1.The Applicant Mother has permission to pursue her application for parenting orders on an undefended basis as contemplated under rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) and permission to seek judgment in default under rules 10.26 and 10.27 of the Rules.
2.All previous Orders be and are hereby discharged.

Parental Responsibility
3.The Mother have sole parental responsibility for the children X, born in 2007 and Y, born in 2009 (“the children”).
4.For the purposes of Order 3 herein, in the event that the Mother proposes to make a major, long-term decision in relation to the children, she is to:
4.1~~3.1~~      advise the Father of her proposal in writing, allowing at least 14 days before the decision has to be made (unless in a time-sensitive situation, where maximum reasonable notice is to be given);
4.2~~3.2~~      consider any written response she has received from the Father, provided such response is either sent within 14 days of issuance of her proposal or, if a time-sensitive situation, within the identified maximum period for a response; and
4.3~~3.3~~      inform the Father in writing of any decision she has made or action/s she has taken in relation to the children within three days of taking said action.

Live with/Communication
5.The children live with the Mother.
6.The children spend time and communicate with the Father in accordance with their wishes.
7.The Father shall communicate with the children as follows:
7.1~~6.1~~ via letters, photos and e-mails on no more…

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 Encela & Rillo

Details

AGLC: Encela & Rillo [2022] FedCFamC2F 1696
Case: [2022] FedCFamC2F 1696
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Mother, Ms. Rillo, filed an application for parenting orders concerning her two children, X and Y, born in 2007 and 2009 respectively. The Father, Mr. Encela, did not participate in the proceedings. The Mother sought final orders for sole parental responsibility, living arrangements, communication, and various other matters including travel and medical assessments. The Father had failed to comply with previous court orders and did not appear for the hearing. The Court was required to determine whether the Mother could proceed with her application on an undefended basis, and if so, whether the proposed orders were in the best interests of the children.

The Court found that the Father was in default under the Family Law Rules for failing to comply with procedural orders and had not participated in the proceedings. The Court concluded that the Mother had been given an adequate opportunity to be heard and that the Father's non-engagement warranted proceeding on an undefended basis. The Court then considered whether the proposed orders were in the best interests of the children, taking into account the risk factors posed by the Father's alcohol and drug use, mental health issues, and lack of engagement with the children. The Court determined that the orders were appropriate to protect the children and that sole parental responsibility should remain with the Mother.

The Court made orders granting the Mother sole parental responsibility, allowing the children to live with her and spend time with the Father as they wished, and imposing restrictions on the Father's contact with alcohol and drugs. The Court also made orders for medical assessments, provision of information, travel, and other matters. The Court noted that the orders were largely consistent with the current living arrangements and provided a framework for the Father to potentially become more involved in the future if he addressed the risk factors identified.

Orders