Lei & Nuan (No 2) - [2023] FedCFamC2F 628

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lei & Nuan (No 2) [2023] FedCFamC2F 628

File number(s): BRC 7418 of 2021

Judgment of: JUDGE VASTA

Date of judgment: 20 April 2023

Catchwords: FAMILY LAW – Children – contact – indefinite supervised time

Legislation: Family Law Act 1975 (Cth): s 60B, s 60CA, s 60CC, s 60CG, s 61DA, s 64B, s 65D, s 65DAB

Division: Division 2 Family Law

Number of paragraphs: 132

Date of last submission/s: 20 April 2023

Date of hearing: 18, 19 and 20 April 2023

Place: Brisbane

Counsel for the Applicant: Mr Taylor

Solicitor for the Applicant: Life Law Solutions

Counsel for the Respondent: Mr Purcell

Solicitor for the Respondent: Hofstee Lawyers

Counsel for the Independent Children's Lawyer: Mr George

Solicitor for the Independent Children's Lawyer: Jenny Boulton Solicitor
ORDERS

BRC 7418 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LEI

Applicant

AND:
MR NUAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE VASTA

DATE OF ORDER:

20 APRIL 2023

BY WAY OF FINAL ORDER, THE COURT ORDERS:
1.That the previous Orders are discharged.
2.That the mother have sole parental responsibility for the children X born 2014 and Y born 2016 (“the children”).
3.That the children live with the mother.
4.That the children spend time with the father as may be agreed between the parties but failing agreement as follows:
(a)Each alternate weekend on either Saturday or Sunday for a period of 2 hours at B Family Services, C Family Services or D Contact Centre or such other Contact Centre as may be agreed between the parties in writing.
(b)The father be responsible for all costs associated with the supervised visits.
(c)If the children are unwell and unable to attend to spend time with the father the mother produce a medical certificate to the contact centre and the father.

5.That the father communicate by telephone or facetime with the children each Wednesday from 6:00pm with such calls to be limited to 15 minutes only unless otherwise agreed. If when the father initiates the call and the children are unable to take the call the mother will have the children return the call as soon as possible.
6.That the children be at liberty to communicate with the father by telephone or facetime at such times as the children reasonably request and the mother shall facilitate the call.
7.During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of and to the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;
(d)Not expose or subject the children to domestic and/or family violence; and
(e)Not discuss adult issues in the presence or hearing of the…

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 Lei & Nuan (No 2)

Details

AGLC: Lei & Nuan (No 2) [2023] FedCFamC2F 628
Case: [2023] FedCFamC2F 628
Decision Date

CaseChat Overview and Summary

This is a case of parenting orders, where the Court was required to determine the best interests of the children in relation to their contact with their parents, as well as the parental responsibility of the parents. The father had raised some significant issues regarding his mental health, which were considered by the Court. However, the Court found that the father's mental health issues were not as severe as he had claimed, and that he had deliberately minimised his condition to avoid consequences. The Court also found that the father's beliefs about the mother were delusional and based on his hatred towards her. The Court determined that the best interests of the children were to have a meaningful relationship with both parents, but also to protect them from the risk of family violence, harm, or abuse. The Court concluded that it was not in the children's best interests for the father to have unsupervised time with them, due to the risk he posed to them. Therefore, the Court ordered that the mother have sole parental responsibility for the children, and that the children spend time with the father in a supervised setting. The Court also ordered that the father be responsible for all costs associated with the supervised visits.

The final orders of the Court were that the previous Orders are discharged, the mother have sole parental responsibility for the children, the children live with the mother, the children spend time with the father as may be agreed between the parties but failing agreement as follows, the father communicate by telephone or facetime with the children each Wednesday from 6:00pm with such calls to be limited to 15 minutes only unless otherwise agreed, the children be at liberty to communicate with the father by telephone or facetime at such times as the children reasonably request and the mother shall facilitate the call, the parents do all acts and things and sign all documents necessary, within seven (7) days of written request received from the other parent, to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children to be issued (and if requested, re-issued) with an Australian travel document, with the requesting party to be responsible for the costs of the issue or re-issue of the children's passports, the children's passports are to be held by the mother when not in use, the parents do all acts and things and sign all documents necessary, within seven (7) days of written request received from the other parent, to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children to be issued (and if requested, re-issued) with an Australian travel document, with the requesting party to be responsible for the costs of the issue or re-issue of the children's passports, the children's passports are to be held by the mother when not in use, during the time that the children are spending holiday time with either parent, that parent shall be at liberty to take the children to a Hague Convention country only and in relation to same, the travelling parent shall give 6 weeks written notice to the other parent of their intention to travel with the children, unless otherwise agreed, travel is to occur during the time the children are ordinarily spending with the travelling parent, the travelling parent is not to take the children to a country listed as having an advice Level 3 or higher or listed as "do not travel" on the Australian Smart Traveller website, the travelling parent shall provide to the other parent at least three (3) weeks prior to their departure the following, the Independent Children’s Lawyer is discharged after 28 days from the date of these Orders.

Orders