Henderson & Mumford - [2022] FedCFamC2F 1344

Federal Circuit and Family Court of Australia
(DIVISION 2)
Henderson & Mumford [2022] FedCFamC2F 1344

File number(s): NCC 3747 of 2018

Judgment of: JUDGE BETTS

Date of judgment: 11 October 2022

Catchwords: FAMILY LAW – Parenting – final orders – two children, aged 9 and 8 years – where the Mother relocated from rural Victoria to the NSW Region B in 2018 – where the Father has remained living in Victoria – where the Mother alleges the Father perpetrated physical, verbal, emotional and sexual family violence – where the Father has a history of abusing alcohol and prescription medication – where the Father has previously tested positive for using methamphetamine – where the Mother seeks a “no time and no communication order” – where the Father adopted the ICL’s proposal for limited school holiday time, with safeguards – where the Court must weigh up the risks posed by the Father and his history of perpetrating family violence – where the court must consider if the Mother’s capacity to parent the children would be adversely impacted by making the Father’s proposed orders – best interests of the children.

Legislation:
Family Law Act 1975 (Cth), Pt VII

Summary Offences Act 1966 (Victoria), s 7

Cases cited:
A v A (1998) FLC 92-800

Amador & Amador (2009) 43 Fam LR 268

Blinko & Blinko [2015] FamCAFC 146

Helbig & Rowe [2016] FamCAFC 117

Jones v Dunkel (1959) 101 CLR 298

Keane & Keane [2021] FamCAFC 1

M & M (1988) FLC 91-979

Russell & Close (Unreported Full Court, 25 June 1993)

Sedgley & Sedgley (1995) FLC 92-623

Division: Division 2 Family Law

Number of paragraphs: 199

Date of last submission/s: 7 June 2022

Date of hearing: 29, 30 November 2021, 24, 25 March 2022 and 7 June 2022

Place: Newcastle

Counsel for the Applicant: Mr Graham

Solicitor for the Applicant: Tony Cox Lawyers

Counsel for the Respondent: Ms Kaiti

Solicitor for the Respondent: Strive Family Law & Mediations

Solicitor Advocate for the Independent Children’s Lawyer: Ms Blackman

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Town Y

ORDERS

NCC 3747 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HENDERSON

Applicant

AND:
MR MUMFORD

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BETTS

DATE OF ORDER:

11 October 2022

THE COURT ORDERS THAT:
1.The children X born in 2012 and Y born in 2014 (“the children”) live with the Mother.
2.The Mother have sole parental responsibility for the children.
3.The children spend no time with, and have no communication with the Father.
4.Pursuant to section 68B of the Family Law Act1975 (Cth), the Father is restrained by injunction from removing the children from any day care centre, school, extra-curricular activity or from the care of any person in whose care the Mother has placed the children.
5.Pursuant to section 11(1)(b) of the Australian Passports Act2005, the Mother is authorised to apply for and retain a passport for the children without the Father’s written consent or…

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 Henderson & Mumford

Details

AGLC: Henderson & Mumford [2022] FedCFamC2F 1344
Case: [2022] FedCFamC2F 1344
Decision Date

CaseChat Overview and Summary

The proceedings concern the future parenting of two siblings, X and Y, aged nine and eight years respectively. The parents, Ms Henderson (the Mother) and Mr Mumford (the Father), separated in 2018. The Mother alleges the Father perpetrated physical, verbal, emotional and sexual family violence, abused alcohol and prescription medication, and used illicit drugs including methamphetamine. The Father denies the allegations and claims he is no risk to the children. The court was required to decide whether the relationship between the Father and the children should be given the opportunity to continue, albeit in a modest and circumscribed way and with safeguards, or whether it should be severed. The court found that the Father had perpetrated family violence, abused alcohol and prescription medication, and used illicit drugs, all of which created serious and abiding risks to the children. The court considered that with appropriate safeguards, the risks posed by the Father would not be "unacceptable" if the time was professionally supervised. However, given the inherently very limited nature of the time, the Mother's resistance to it, and her long-term experience as a victim of family violence at the Father's hands, the court determined that severing the relationship was in the best interests of the children. The court made orders for the children to live with the Mother, for the Mother to have sole parental responsibility for the children, and for the children to spend no time with, and have no communication with the Father. The Father is also restrained by injunction from removing the children from any day care centre, school, extra-curricular activity or from the care of any person in whose care the Mother has placed the children. The Mother is authorised to apply for and retain a passport for the children without the Father's written consent or approval and without him having to sign any documents. The Mother is also at liberty to travel outside of the Commonwealth of Australia with the children whether or not the Father has consented to any such travel. Each party bears their own costs of and incidental to the proceedings.

Orders