Garthorne & Garthorne - [2023] FedCFamC2F 462

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garthorne & Garthorne [2023] FedCFamC2F 462

File number: NCC 4533 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 26 April 2023

Catchwords: FAMILY LAW – parenting – three neuro-diverse children aged 12, 11 and 9 have not spent time with the father for nearly six months - father poses a material possibility of risk of harm to the children’s emotional and psychological health – mental health and alcohol abuse – increased risk of family violence – long-term supervision order to protect the children from harm while encouraging a meaningful relationship with the father – injunctions to address each parent’s deficits - reduced risk of exposure to parental conflict – best interests of children

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Bielen & Kozma [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Bondelmonte v Bondelmonte [2017] HCA 8

Browne v Dunn (1893) 6 R 67

Eastley & Eastley [2021] FedCFamC1F 212

Fairfield & Hoffman [2021] FamCAFC 151; (2021) FLC 94-045

Godfrey & Saunders [2007] FamCA 102

Isles & Nelissen [2022] FedCFamC1A 97

Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554

Mazorski & Albright [2007] FamCA 520

Moose & Moose (2008) FLC 93-375

Napier & Hepburn [2006] FamCA 1316

Penfold and Penfold (1980) 144 CLR 311

Russell & Close [1993] FamCA 62

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 2 Family Law

Number of paragraphs: 124

Date of hearing: 20-22 March 2023

Place: City B

Counsel for the Applicant: Mr Moshides

Solicitor for the Applicant: Darley Legal

Counsel for the Respondent: Mr Antill

Solicitor for the Respondent: SCB Legal

Counsel for the Independent Children's Lawyer: Ms Callander (Solicitor Advocate)

Solicitor for the Independent Children's Lawyer: Legal Aid NSW (City B)
ORDERS

NCC 4533 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GARTHORNE

Applicant

AND:
MR GARTHORNE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

26 April 2023

THE COURT ORDERS THAT:
1.All previous Orders are discharged.
2.The applicant, MS GARTHORNE (‘the mother’) shall have sole parental responsibility for:
(a)X born in 2010;
(b)Y born in 2012; and
(c)Z born in 2013,

(collectively described as ‘the children’).
3.The children shall live with the mother.

The time the children spend with the father
4.Until 30 November 2026, the children shall spend professionally supervised time with the respondent, MR GARTHORNE (‘the father’) for a period of two (2) hours, four (4) times each year falling on a day between 14 days and seven (7) days before each of the children’s birthdays and Christmas Day PROVIDED THAT:
(a)The mother shall have sole discretion as to the selection of the children’s contact service who is to provide professional supervision of the children’s time with the father (‘the supervisor’);
(b)The father shall be responsible for the costs of the supervisor;
(c)The mother and the father shall do all acts and things as reasonably…

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 Garthorne & Garthorne

Details

AGLC: Garthorne & Garthorne [2023] FedCFamC2F 462
Case: [2023] FedCFamC2F 462
Decision Date

CaseChat Overview and Summary

Garthorne & Garthorne is a case heard by the Federal Circuit and Family Court of Australia (Division 2). The mother, Ms Garthorne, commenced proceedings against the father, Mr Garthorne, in relation to parenting arrangements for their three children. The court had to decide the risks of harm the children were exposed to in the father's care, and whether those risks could be ameliorated by the amount of time the children spent with him, his mandatory engagement with various health services and/or injunctive relief. The court found that the father posed an unacceptable risk of harm to the children due to family violence and his mental health and alcohol issues. The court ordered that the children would live with the mother, who would have sole parental responsibility. The court also ordered that the children would spend professionally supervised time with the father four times a year until the youngest child turned 13, and that there would be injunctive orders made to protect the children from the risks of harm posed by the parents. The court ordered that the father pay $4,206.60 towards the costs of the Independent Children's Lawyer within 12 months. The court found that the orders it made were in the best interests of the children.

Orders