Gallington & Waite - [2023] FedCFamC1F 434

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gallington & Waite [2023] FedCFamC1F 434

File number(s): BRC 5506 of 2021

Judgment of: HOWARD J

Date of judgment: 6 February 2023

Catchwords: FAMILY LAW – PARENTING – Undefended Hearing – Where the applicant mother failed to attend –Where the mother was convicted of criminal charges relating to domestic violence offences – Where it is alleged that the mother sexually abused the child – Where it is neither necessary nor desirable in the circumstances of this case to make findings concerning the allegations of sexual abuse – Where the 15 year old boy expressed a strong wish to live with his father and not spend time with his mother – Where it is in the child’s best interests to live with the father – Sole parental responsibility to the father.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 10.13(1)(a)

Cases cited:
Cox v Pedrana (2013) FLC 93-537

Eagle & Scarlett (No 2) [2020] FamCAFC 291

M v M (1988) 166 CLR 69

Whisprun Pty Ltd v Dickson (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 18

Date of hearing: 6 February 2023

Place: Brisbane

Applicant: Litigant in person (did not participate)

Solicitor for the Respondent: JMR Lawyers and Mediators

Solicitor for the Independent Children’s Lawyer: Jenny Boulton Solicitor
ORDERS

BRC 5506 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GALLINGTON

Applicant

AND:
MS WAITE

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

HOWARD J

DATE OF ORDER:

6 FEBRUARY 2023

THE COURT ORDERS ON A FINAL BASIS:
1.That the child X (‘the child’) born 2008 live with the father.
2.That the father have sole parental responsibility in respect of the child.
3.That in the event that the father and the mother agree in writing for the child to spend time with the mother, such time as agreed is to be supervised at a contact centre on two (2) occasions.
4.That if the child has spent the supervised time with the mother on two (2) occasions pursuant to paragraph 3 herein, the child will spend further time with the mother only in in accordance with the child’s wishes.
5.That the Independent Children’s Lawyer be discharged.

IT IS NOTED:
A.That rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that the Court may at any time vary or set aside an order if it was made in the absence of a party.
B.That given this matter was heard on an undefended basis it is noted to the extent necessary that any subsequent parenting application by the mother is not barred by the principles in Rice and Asplund [1978] FamCA 84.
C.This Order has been amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order…

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 Gallington & Waite

Details

AGLC: Gallington & Waite [2023] FedCFamC1F 434
Case: [2023] FedCFamC1F 434
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 1, the matter of Gallington & Waite was heard and determined by Howard J. The proceedings involved a parenting dispute between the father, Mr Gallington, and the mother, Ms Waite, concerning their 15-year-old son, X. The key legal issues were the best interests of the child and whether any time should be allowed for X to spend with his mother, given allegations of domestic violence and sexual abuse against her. The Court had to consider the statutory provisions of the Family Law Act 1975 (Cth), particularly sections 60CA, 60CC, 61DA, and 65DAA, as well as the relevant case law.

The Court noted that the mother, who had previously been convicted of domestic violence offences, did not attend the hearing despite receiving multiple notifications. The child had not seen his mother since 2014 when he was six years old. The child expressed a strong desire not to spend time with his mother, citing negative experiences and fears of potential harm. The Independent Children's Lawyer supported the father's position, emphasizing the child's need for protection and stability. The Court concluded that it was in the child's best interests to remain living with his father and to have supervised contact with his mother, if agreed upon by both parents, and only under strict supervision. The Court granted sole parental responsibility to the father, reflecting the significant risk factors associated with the mother.

Howard J reasoned that the child's best interests were paramount, and the risk of harm from the mother warranted stringent conditions for any contact. The Court considered the child's age and maturity, giving significant weight to his expressed wishes not to see his mother. The Court also noted the father's stable mental health situation and the child's positive relationship with him. The Court made orders for the child to live with his father, for the father to have sole parental responsibility, and for any contact with the mother to be supervised at a contact centre on two occasions, following which any further contact would depend on the child's wishes.

Orders