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Isaac & Steel

Isaac & Steel

Case [2022] FedCFamC2F 1008 2 August 2022

Parental Responsibility

Family Violence

Child's Best Interests

Unacceptable Risk

Communication Between Parent and Child

Supervised Contact

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Isaac & Steel [2022] FedCFamC2F 1008

File number(s): NCC 1206 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 2 August 2022

Catchwords: FAMILY LAW - PARENTING – Best interests of the eight-year-old child – Where both parties have perpetrated family violence upon each other - Where there is agreement for the mother to have sole parental responsibility and the child live with her - Whether the child should spend time with the father – How communication between the father and the child should occur and/or be facilitated – unacceptable risk of harm established and to be ameliorated by postal communication only to occur quarterly with the father – child’s wishes to be taken in account at age 14

Legislation:
Family Law Act 1975 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Blinko & Blinko [2015] FamCAFC 146

Dunst & Dunst [2016] FamCAFC 15

Gallagher & Gomez [2017] FamCA 944

Hollister & Gosselin [2016] FamCA 759

Isles & Nelissen [2022] FedCFamC1A 97

Keane & Keane [2020] FamCA 99

Re Andrew [1996] FamCA 43

Russell & Close [1993] FamCA 62

Sedgley and Sedgley [1995] FamCA 154

Stott & Holgar [2017] FamCAFC 152

Sweet & Sweet [2022] FedCFamC2F 676

Division: Division 2 Family Law

Number of paragraphs: 187

Date of hearing: 14-16 June 2022

Place: Newcastle

Counsel for the Applicant: Mr B Kelly

Solicitor for the Applicant: CopperTree Family Law

Counsel for the Respondent: Mr M Juhasz

Solicitor for the Respondent: Catalyst Family Lawyers

Counsel for the Independent Children's Lawyer: Mr A Gallimore

Solicitor for the Independent Children's Lawyer: Gillard Family Lawyers
ORDERS

NCC 1206 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ISAAC

Applicant

AND:
MR STEEL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

2 August 2022

THE COURT ORDERS THAT:
1.All previous parenting orders for the child X born in 2014 (‘X’) are discharged.
2.The applicant, Ms Isaac (‘the mother’) shall have sole parental responsibility for X.
3.Within 14 days of doing so, the mother shall advise the father in writing by way of SMS text message of any major decision she has made in relation to X.
4.X shall live with the mother.
5.From the time that X commences year 8 of her education, should she express a desire to spend time with or communicate with the respondent Mr Steel (‘the father’) other than via the post THEN the mother shall facilitate any reasonable request by X to do so.
6.The father be permitted to communicate with X by way of letter and/or card, and may send to X a gift from himself, and a gift on behalf of the extended paternal family on the following occasions each year:
(a)Easter;
(b)The child’s birthday;
(c)Christmas; and
(d)Once during the month of October.

7.To facilitate Order 6, the mother shall ensure that such gifts and communications are provided to X.
8.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 Isaac & Steel

Details

AGLC: Isaac & Steel [2022] FedCFamC2F 1008
Case: [2022] FedCFamC2F 1008
Decision Date

CaseChat Overview and Summary

The parties to these proceedings are MS ISAAC and MR STEEL who have one child, X, now aged eight years. The parties are before the court to determine issues of parenting, including the time X should spend with the father and how communication should occur between X and the father. The Independent Children's Lawyer recommended that X should have some agency over what time she spends with the father, and the child expert supported this view. The mother proposed sole parental responsibility, X living with her and the father having limited written communication with X. The father proposed supervised time for a period of six months, followed by unsupervised time. The court found that the father had perpetrated family violence against the mother and the mother had perpetrated family violence against the father. The court found that the father currently posed an unacceptable risk to X's psychological and/or emotional harm. The court found that the mother had a genuine belief that the father posed a risk to X and that her parenting capacity could be adversely affected if X spent time with the father. However, the court found that the mother's belief was not the only way to mitigate the risk of harm to X. The court found that the father had poor emotional regulation, particularly when he was required to comprehend and submit to the views of others, and that X had witnessed this behaviour. The court found that the father had a lack of insight into the emotional needs of X. The court found that there was no evidence to suggest that the father had addressed his behaviour, gain any insight or change his behaviour. The court found that the father had not taken up the opportunity offered to spend time with X. The court found that the mother had a genuine belief that the father posed a risk to X and that her parenting capacity could be adversely affected if X spent time with the father. However, the court found that the mother's belief was not the only way to mitigate the risk of harm to X. The court found that the father had poor emotional regulation, particularly when he was required to comprehend and submit to the views of others, and that X had witnessed this behaviour. The court found that the father had a lack of insight into the emotional needs of X. The court found that there was no evidence to suggest that the father had addressed his behaviour, gain any insight or change his behaviour. The court found that the father had not taken up the opportunity offered to spend time with X. The court found that the mother had a genuine belief that the father posed a risk to X and that her parenting capacity could be adversely affected if X spent time with the father. However, the court found that the mother's belief was not the only way to mitigate the risk of harm to X. The court found that the father had poor emotional regulation, particularly when he was required to comprehend and submit to the views of others, and that X had witnessed this behaviour. The court found that the father had a lack of insight into the emotional needs of X. The court found that there was no evidence to suggest that the father had addressed his behaviour, gain any insight or change his behaviour. The court found that the father had not taken up the opportunity offered to spend time with X. The court made orders that the mother shall have sole parental responsibility for X, X shall live with the mother and the father shall have limited written communication with X. The court also made orders that the father be permitted to communicate with X by way of letter and/or card, and may send to X a gift from himself, and a gift on behalf of the extended paternal family on specified occasions each year. The court also made orders that X shall be permitted to spend time with and communicate with the father via means (other than the post) in accordance with her wishes when she commences year 8 of her secondary education. The court also made orders to support the father having access to information about X and to otherwise protect X from exposure to parental conflict.

Orders