Harmon & Ventura - [2023] FedCFamC2F 16

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harmon & Ventura [2023] FedCFamC2F 16

File number(s): DGC 1435 of 2021

Judgment of: JUDGE BOYMAL

Date of judgment: 17 January 2023

Catchwords: FAMILY LAW – Parenting – four year old child – whether child lives with mother or father – illicit substance abuse by mother – unacceptable risk – whether child starts school or remains in kindergarten in 2023

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D and 65DAA

Cases cited:
Adamson & Adamson [2014] FamCAFC 232

Blinko & Blinko [2015] FamCAFC 146

Grella & Jamieson [2017] FamCAFC 21

Slater & Light [2013] FamCAFC 4

Division: Division 2 Family Law

Number of paragraphs: 227

Date of hearing: 13 - 14 October 2022 and 18 November 2022

Place: Dandenong

Counsel for the Applicant: Ms Johnston

Solicitor for the Applicant: Zenith Lawyers and Consultants

Counsel for the Respondent: Mr Allen

Solicitor for the Respondent: Bruce Caldwell & Associates

Solicitor for the Independent Children's Lawyer: Peter Lynch
ORDERS

DGC 1435 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HARMON

Applicant

AND:
MR VENTURA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BOYMAL

DATE OF ORDER:

17 JANUARY 2023

THE COURT ORDERS THAT:
1.The mother and father have equal shared parental responsibility for X born in 2018.
2.X live with the father.
3.X spend time and communicate with the mother as follows:
(a)subject to order 3(c) and until the mother is drug free as established by Orders 5 and 7 herein, each alternate weekend from 10.00am Thursday until 3.30pm Monday commencing 19 January 2023, save that upon X commencing school and this time falling during school term, time will commence at the conclusion of school on Thursday and conclude at the commencement of school on Monday;
(b)subject to Order 3(c), time in accordance with Orders 9 and 13 herein;
(c)during all times spent between X and the mother, either Ms B or Ms C or such other person as may be agreed in writing between the parents be in substantial attendance until the mother ceases all illicit substance use;
(d)by FaceTime on each Monday and Thursday at 7.00pm when X is not in the mother’s care; and
(e)at such further or other times as may be agreed in writing between the parents.

4.Unless otherwise agreed between the parents in writing when changeover does not take place at school, changeover take place at McDonalds in Suburb D.
5.Within 12 months of these Orders, once in the first six months and once in the second six months, the father be permitted to request in writing that the mother undergo hair drug testing for illicit substances, such testing to be paid for by the mother. The testing is to be undertaken by the mother in accordance with Order 7 herein within 7 days of such written request.
6.On two occasions in each 12 months thereafter the father be permitted to request in…

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 Harmon & Ventura

Details

AGLC: Harmon & Ventura [2023] FedCFamC2F 16
Case: [2023] FedCFamC2F 16
Decision Date

CaseChat Overview and Summary

This case concerns the parenting arrangements for a four-year-old child, X, who has been diagnosed with autism, ADHD, and PTSD. The parents have separated and the father has been the primary caregiver of X for nearly two years due to the mother's illicit substance abuse. The issues in dispute are whether interim or final orders should be made, whether the parents have equal shared parental responsibility, whether X should live with the father or the mother, and whether X should commence primary school in 2023 or continue in kindergarten. The court considered the evidence and submissions from both parents, the Independent Children's Lawyer, and the experts. The court found that X is at an unacceptable risk of harm in the mother's care due to her illicit substance abuse and that the risk can be sufficiently managed and ameliorated if X spends time with the mother under certain conditions. The court also found that it is in X's best interests to commence primary school in 2023 and that the father has provided sufficient evidence to support his views on X's readiness and school choice. The court made final orders providing for the parents to have equal shared parental responsibility, for X to live with the father, for X to spend time and communicate with the mother under certain conditions, for X to commence primary school in 2023, and for other ancillary and consequential orders.

Orders