Lyons & Lyons - [2022] FedCFamC2F 715

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lyons & Lyons [2022] FedCFamC2F 715

File number(s): NCC 1544 of 2019

Judgment of: JUDGE BETTS

Date of judgment: 3 June 2022

Catchwords: FAMILY LAW – Parenting – final orders – one child, aged six years – where the mother is seeking a “no time and no communication” order – where the father is seeking supervised time initially, graduating to substantial and significant unsupervised time – where there is a current five year AVO protecting the mother from the father – where the mother raises issues of the father’s alcohol abuse, past family violence and his ongoing emotional abuse and aggressive behaviour – where the father has breached the AVO, Supreme Court bail conditions, a Local Court order and Contact Centre rules – where the father demonstrates an inability to manage his behaviour/emotions and respect boundaries and rules – where the father poses an unacceptable risk of physical and emotional/psychological harm to the child – best interests of the child.

Legislation:
Family Law Act1975 (Cth) Part VII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited:
Goode & Goode (2006) FLC 93-286

Keane v Keane [2021] FamCAFC 1

M & M (1988) FLC 91-979

Division: Division 2 Family Law

Number of paragraphs: 230

Date of last submission/s: 23 March 2022

Date of hearing: 30 June 2021, 1-2 July 2021, 3 December 2021, 23 March 2022.

Counsel for the Applicant: Mr Bithrey

Solicitors for the Applicant: Barraclough Jones & Associates

Solicitors for the Respondent: N/a – Self-represented

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

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Port Macquarie
ORDERS

NCC 1544 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LYONS

Applicant

AND:
MR LYONS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

3 JUNE 2022

THE COURT ORDERS THAT:
1.The Mother has sole parental responsibility for the child, X born in 2015 (“the child”).
2.The child live with the Mother.
3.The child spends no time with the Father.
4.Pursuant to section 11(1)(b) of the Australian Passports Act2005, the Mother is entitled to apply for a passport/travel document for the child, X born in 2015, without the requirement that the Father give his consent or that he sign any requisite documents.
5.Pursuant to section 65Y of the Family Law Act 1975, the child X born in 2015 is permitted to travel internationally with the Mother without the Father’s prior consent.

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

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.

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Details

AGLC: Lyons & Lyons [2022] FedCFamC2F 715
Case: [2022] FedCFamC2F 715
Decision Date

CaseChat Overview and Summary

The Family Law Court was asked to make parenting orders in relation to X, a six and a half year old girl. The Mother sought "no time and no communication" orders in relation to the Father, citing his alcohol abuse, past family violence and his ongoing emotionally abusive and aggressive behaviour. The Independent Children’s Lawyer proposed "no time" orders but suggested that there be the opportunity for some limited communication in that the Father could send X letters, cards and photographs on her birthday and at Christmas each year provided that the Mother first vetted their contents. The Court was required to decide whether it would be in X’s best interests to make "no time and no communication" orders or whether some limited time and/or communication should be permitted. The Court found that the Father’s ongoing and deep animosity towards the Mother, his difficulty managing anger, his past perpetration of family violence and his chronic, and largely untreated, alcohol abuse, all posed an unacceptable risk of physical and emotional harm to X. The Father’s refusal to comply with orders and boundaries indicated that he was unlikely to accept any safeguards the Court could impose to reduce the risks to an “acceptable” level. The Court concluded that it would be in X’s best interests for the Mother to have sole parental responsibility and for there to be "no time and no communication" between X and the Father.

Orders