Gamber & Landy - [2023] FedCFamC2F 743

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gamber & Landy [2023] FedCFamC2F 743

File number(s): WOC 676 of 2016

Judgment of: JUDGE MORLEY

Date of judgment: 3 May 2023

Catchwords: FAMILY LAW – parenting application – application for interim orders – where current interim parenting orders were made by consent in 2021 – where Father has not spent time with children since June 2019 – where the Court finds the Father has perpetrated acts of family violence –application dismissed

Legislation:
Crimes (Sentencing Procedure) Act 1999 (Cth) s 7(1)

Family Law Act 1975 (Cth) ss 4AB, 60, 60CA, 60CC, 61D, 61DA, 65DAA, 68B, 68L, 69ZL

Cases cited:
A & A & The Child Rep (1998) 22 FamLR 756

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FLC 93-654

George & George [2013] FamCAFC 182

Grella & Jamieson [2017] FamCAFC 21

Hannigan & Sorraw [2010] FamCAFC 257

Isles & Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FLC 93-344

M & M [1988] FLC 91-973

Napier & Hepburn [2006] FLC 93-303

Division: Division 2 Family Law

Number of paragraphs: 104

Date of hearing: 16 March 2023

Place: Wollongong

The Applicant: Litigant in person

Solicitor for the Respondent: Ms Finney

Solicitor for the Independent Children's Lawyer: Ms Ung
ORDERS

WOC 676 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GAMBER

Applicant

AND:
MS LANDY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

3 MAY 2023

THE COURT ORDERS THAT:
1.The Father’s Application in a Proceeding filed on 16 November 2021 is dismissed.

THE COURT NOTES THAT:
A.The interim parenting orders that have been in force up to the present time continue.
B.The matter is set down for final hearing before Judge Neville between 14 and 16 August 2023.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gamber & Landy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:

These are the Reasons for Judgment that were delivered ex tempore on 3 May 2023. They have been settled herein in written form. Grammatical errors and accidental errors in reference have been amended for ease of comprehension. Legal citations have been included in full and incorporated into these Reasons.
These Reasons relate to an interim hearing that took place…

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 Gamber & Landy

Details

AGLC: Gamber & Landy [2023] FedCFamC2F 743
Case: [2023] FedCFamC2F 743
Decision Date

CaseChat Overview and Summary

This interim hearing related to an application for parenting orders between Mr Gamber (the father) and Ms Landy (the mother). The father sought unsupervised visitation with the children and communication with the children through electronic means. The mother opposed the application and sought that the application be dismissed. The Independent Children's Lawyer recommended that the application be dismissed. The court dismissed the father's application. In doing so, the court found that there was an unacceptable risk to the children if they were to spend time with the father. The court found that the father had perpetrated family violence and had exhibited anger issues, including using violence against the children's maternal uncle. The court found that the father's anger and propensity to violence had been exacerbated by alcohol. The court found that the father's risk to the children was unacceptable. The court found that there was no benefit to the children in spending time with the father and that the relationship between the father and the children was in a deteriorated state. The court found that the mother had adequate capacity to provide for the needs of the children and that the father had not demonstrated a child-focused attitude. The court found that the existing interim parenting orders should continue pending the final hearing of the matter.

Orders