Felton and Penman - [2016] FCCA 1816

FEDERAL CIRCUIT COURT OF AUSTRALIA

FELTON & PENMAN

[2016] FCCA 1816

Catchwords:
FAMILY LAW – Parenting – family violence – orders in best interests of child.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 61DA, 65DAA, 68B, 114

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MS FELTON

Respondent:

MR PENMAN

File Number:

WOC 525 of 2014

Judgment of:

Judge Altobelli

Hearing dates:

10-15 December 2015 and 30-31 May 2016

Date of Last Submission:

17 June 2016

Delivered at:

Wollongong

Delivered on:

14 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms Gillies

Solicitors for the Applicant:

Helen Volk Lawyers

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Mr Jackson

Solicitors for the Independent Children's Lawyer:

Maguire & McInerney Lawyers

ORDERS

The Mother have sole parental responsibility of the child X born (omitted) 2011(‘the child’).
The child live with the Mother.
The child shall spend time with the Father:
(a)on the first Saturday in February, July and September in each year for 2 hours
(b)on the second Saturday in December in each year for 2 hours
with such time to be supervised by CatholicCare in (omitted) or any other agreed professional supervised contact centre.
The Father is to pay for the cost of supervision of his time with the child.
Subject to the provisions of order 6, there be no communication between the child and the Father.
The Father be permitted to provide to the child twice every year:
(a)birthday cards and/or birthday presents, and
(b)Christmas cards and/or Christmas presents.
(c)such items should for the first year after the date of these orders be provided to the Independent Children’s Lawyer through the postal address of the office Maguire and Mcinerney solicitors of Wollongong and thereafter be provided through a postal office box belonging to the Mother as nominated by her.
The Father be restrained from:
(a)assaulting, molesting, threatening, harassing, stalking, intimidating or otherwise interfering with the Mother.
(b)approaching or being within 100m of the Mother's family home.
(c)coming within 100 metres of any place at which the Mother shall work
(d)coming within 100 metres of the child's school
(e)publishing any photographs or videos of the child on any medium, in any public place or on social media or publishing or posting any derogatory or critical comments of the Mother on any medium, in any public place or on social media.
Order 7 is an order for the personal protection of the Mother and the child pursuant to section 68B of the Family Law Act 1975 (‘the Act’) to which a power of arrest without warrant attaches pursuant to section 68C of the Act.
The Mother be at liberty to apply for the issue and/ or renewal of an Australian passport for the child, without the signature or consent of the Father.

THE COURT NOTES THAT:

A. The Mother shall within 21 days of these orders attempt to make contact with Ms M for the purposes of attempting to facilitate time on an ongoing basis between…

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 Felton and Penman

Details

AGLC: Felton and Penman [2016] FCCA 1816
Case: [2016] FCCA 1816
Decision Date: 14 September 2016

CaseChat Overview and Summary

In the matter of *Felton and Penman*, heard by Judge Altobelli, the dispute concerned parenting arrangements for a child, X, born in 2011. The proceedings involved the child's mother and father, with the court ultimately making orders regarding parental responsibility, the child's living arrangements, and the father's contact with the child.

The court was required to determine the most appropriate parenting orders for the child, considering the welfare and best interests of X. This included deciding on sole or joint parental responsibility, where the child would live, the nature and extent of the father's time with the child, and the level of supervision required for any contact. Furthermore, the court had to consider orders for the personal protection of the mother and the child, including restrictions on the father's behaviour and proximity to the mother and child.

Judge Altobelli ordered that the mother have sole parental responsibility for the child, and that the child live with the mother. The father was granted limited, supervised time with the child on specific dates throughout the year, with the father to bear the cost of supervision. The court also imposed significant restrictions on communication between the father and the child, permitting only the provision of birthday and Christmas cards and presents through a nominated postal address. Crucially, the court made extensive orders for the personal protection of the mother, restraining the father from assaulting, harassing, or intimidating her, and prohibiting him from approaching within 100 metres of her home, workplace, or the child's school. The father was also prohibited from publishing any photographs or derogatory comments about the mother on social media. These protection orders were made pursuant to section 68B of the *Family Law Act 1975* and carried a power of arrest without warrant under section 68C of the Act. The mother was granted liberty to apply for the child's passport without the father's signature or consent. The court also noted the mother's obligation to attempt to facilitate contact between the child and her half-siblings.

Orders

Orders of the court

The Mother have sole parental responsibility of the child X born (omitted) 2011(‘the child’).

The child live with the Mother.

The child shall spend time with the Father:

(a) on the first Saturday in February, July and September in each year for 2 hours

(b) on the second Saturday in December in each year for 2 hours

with such time to be supervised by CatholicCare in (omitted) or any other agreed professional supervised contact centre.

The Father is to pay for the cost of supervision of his time with the child.

Subject to the provisions of order 6, there be no communication between the child and the Father.

The Father be permitted to provide to the child twice every year:

(a) birthday cards and/or birthday presents, and

(b) Christmas cards and/or Christmas presents.

(c) such items should for the first year after the date of these orders be provided to the Independent Children’s Lawyer through the postal address of the office Maguire and Mcinerney solicitors of Wollongong and thereafter be provided through a postal office box belonging to the Mother as nominated by her.

The Father be restrained from:

(a) assaulting, molesting, threatening, harassing, stalking, intimidating or otherwise interfering with the Mother.

(b) approaching or being within 100m of the Mother's family home.

(d) coming within 100 metres of the child's school

(e) publishing any photographs or videos of the child on any medium, in any public place or on social media or publishing or posting any derogatory or critical comments of the Mother on any medium, in any public place or on social media.

Order 7 is an order for the personal protection of the Mother and the child pursuant to section 68B of the Family Law Act 1975 (‘the Act’) to which a power of arrest without warrant attaches pursuant to section 68C of the Act.

The Mother be at liberty to apply for the issue and/ or renewal of an Australian passport for the child, without the signature or consent of the Father.

THE COURT NOTES THAT:

A. The Mother shall within 21 days of these orders attempt to make contact with Ms M for the purposes of attempting to facilitate time on an ongoing basis between the child and her half siblings, A and B.

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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