Howey & Greenwell - [2023] FedCFamC2F 1459

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Howey & Greenwell [2023] FedCFamC2F 1459

File number: BRC 13215 of 2022

Judgment of: JUDGE TAGLIERI

Date of judgment: 15 November 2023

Catchwords: FAMILY LAW – Review of Senior Judicial Registrar’s decision – interim parenting orders – where father had not complied with previous orders in respect of drug testing – where father’s time with child is supervised – application dismissed

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB(2), 60CC(2), 60CC(2A), 60CC(3)

Cases cited:
Deiter & Deiter [2011] FAMCAFC 82

Goode & Goode [2006] FamCA 1346

Marvel & Marvel [2010] FamCAFC 101

MRR & GR [2010] HCA 4

Division: Division 2 Family Law

Number of paragraphs: 46

Date of hearing: 7 November 2023

Place: Hobart

For the Applicant: In person

For the Respondent: In person

For the Independent Children’s Lawyer Ms Berck, Berck Solicitors
ORDERS

BRC 13215 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOWEY

Applicant

AND:
MS GREENWELL

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

15 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The Application for Review filed 22 September 2023 is dismissed.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

This judgment concerns interim parenting orders that come for determination pursuant to an Application for Review by the Applicant Father Mr Howey (“the Father”) filed 22 September 2022. The respondent to the Application for Review is the Respondent Mother Ms Greenwell (“the Mother”).
In effect, by his application the Father seeks to discharge parenting orders made by a Senior Judicial Registrar on 19 September 2023. Those orders suspended previous interim parenting orders made on 24 May 2023 and provided for his time with the child X born 2017 (“the child”) to be professionally supervised. He seeks reinstatement of the orders made on 24 May 2023
THE ISSUES TO BE DETERMINED AND RESPECTIVE POSITIONS OF THE PARTIES
The outcome of this review will be dependent on how the Court resolves disputes about whether the Father’s alleged behaviours present such a risk to the child such that his time should be supervised.
Based on the affidavit material relied upon by the parties, the Independent Children’s Lawyer (“the ICL”) submitted that…

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 Howey & Greenwell

Details

AGLC: Howey & Greenwell [2023] FedCFamC2F 1459
Case: [2023] FedCFamC2F 1459
Decision Date: 15 November 2023

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court was presented with an application for review filed by Mr Howey against an earlier decision made by a Senior Judicial Registrar. The matter concerns interim parenting orders involving the applicant and his child, with Ms Greenwell being the child's mother. The central issue in this case revolved around Mr Howey's compliance with previous drug testing requirements and the conditions surrounding his supervised visits with the child. Given that Mr Howey had not adhered to the stipulated drug testing conditions, the court had to determine whether this non-compliance justified a review of the interim parenting orders.

The legal issues before the court encompassed whether Mr Howey's failure to comply with drug testing orders constituted sufficient grounds for modifying the existing interim parenting arrangements. Additionally, the court needed to assess the implications of Mr Howey's supervised visitation, considering his history of non-compliance, on the welfare of the child. The court had to balance the need for Mr Howey to engage in drug testing against the necessity to maintain a relationship between the father and the child, while ensuring the child's safety and well-being.

Upon reviewing the evidence and arguments presented, the court found that Mr Howey's lack of compliance with the drug testing requirements did not warrant a review of the existing interim parenting orders. The court held that the measures already in place, including supervised visits, were adequate to safeguard the child's interests. Consequently, the application for review was dismissed. The court emphasised that the primary consideration was the child's welfare and that the current arrangements were sufficient to protect this interest.

The final order of the court was that the application for review filed on 22 September 2023 is dismissed. The form of the order is subject to formal entry in the Court’s records, and any minor typographical or grammatical errors may be corrected in accordance with the relevant Federal Circuit and Family Court of Australia rules. This decision underscores the court's commitment to ensuring that family law proceedings are conducted in a manner that prioritises the best interests of the child.

Orders

Orders of the court

BRC 13215 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HOWEY

Applicant

AND:

MS GREENWELL

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

15 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The Application for Review filed 22 September 2023 is dismissed.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	BRC 13215 of 2022
Judgment of:	JUDGE TAGLIERI
Date of judgment:	15 November 2023
Catchwords:	FAMILY LAW – Review of Senior Judicial Registrar’s decision – interim parenting orders – where father had not complied with previous orders in respect of drug testing – where father’s time with child is supervised – application dismissed
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 4AB(2), 60CC(2), 60CC(2A), 60CC(3)
Cases cited:	Deiter & Deiter [2011] FAMCAFC 82 Goode & Goode [2006] FamCA 1346 Marvel & Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4
Division:	Division 2 Family Law
Number of paragraphs:	46
Date of hearing:	7 November 2023
Place:	Hobart
For the Applicant:	In person
For the Respondent:	In person
For the Independent Children’s Lawyer	Ms Berck, Berck Solicitors

BRC 13215 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HOWEY Applicant
AND:	MS GREENWELL Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	15 NOVEMBER 2023