Mancera & Gadsby

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Mancera & Gadsby [2021] FCCA 489

File number(s): BRC 9175 of 2016
Judgment of: JUDGE TONKIN
Date of judgment: 15 March 2021
Catchwords: FAMILY LAW – Practice & procedure – where respondent seeks summary dismissal of application for parenting orders.
Legislation:

Federal Circuit Court of Australia Act1999, ss.17A(2), 17A(3)

Federal Circuit Court Rules 2001, rr.13.03A, 13.03B, 13.10

Federal Court of Australia Act 1976, s. 31A
Cases cited:

Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499

Dey vVictorian Railways Commissioner and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Jabbar & Gade (No 22) [2019] FCCA 2186

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd[2008] FCAFC 60

Spencer v Commonwealth of Australia [2010] HCA 28

Trkulja v Google LLC [2018] HCA 25
Number of paragraphs: 43
Date of last submission/s: 18 February 2021
Date of hearing: 18 January 2021
Place: Brisbane
Solicitor for the Applicant: A P Hodgson & Associates
Solicitor for the Respondent: Michael Lynch Family Lawyers

ORDERS

BRC 9175 of 2016
BETWEEN:

MR MANCERA

Applicant
AND:

MS GADSBY

Respondent

ORDER MADE BY:

JUDGE TONKIN

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:

1.The application filed on 14 September 2016 is summarily dismissed.

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 under the pseudonym Mancera & Gadsby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TONKIN:

INTRODUCTION

  1. On 14 September 2016 the applicant (father) filed an application for parenting orders with respect to the child X born in 2011. He sought orders that the child live with the mother and spend time with the father each alternate weekend and for half the school holidays inter alia. In addition he sought an order for equal shared parental responsibility.

  2. There has been a significant delay by the applicant in prosecuting this matter. Proceedings were commenced in September 2016. On 22 March 2018 the matter was listed before Judge Hughes for final hearing. The hearing was vacated. The applicant’s solicitor withdrew. On 4 March 2019 (a year later) the applicant’s solicitor filed a notice of address for service. The matter did not proceed at all for a period of 15 months. On 17 June 2020 the matter came before me. I made orders on that day. Another 6 months passed. When the matter was next heard on 18 January 2021 the applicant had failed to comply with orders made on 17 June 2020. On 18 January 2021 the respondent made an oral application for summary dismissal of the application. Directions were made for the parties to file documents by 22 February 2021. The applicant has failed to comply with those orders.

    DOCUMENTS

  3. The applicant filed affidavits on…

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Details
Case
[2021] FCCA 489
Decision Date

CaseChat Overview and Summary

The matter of Mancera & Gadsby was before Judge Tonkin, who was tasked with making orders in relation to a parenting application filed by Mr Mancera on 14 September 2016. The core of the dispute between the parties was the custody and contact arrangements for their child, X. Ms Gadsby alleged that Mr Mancera had exhibited violent and aggressive conduct towards her, resulting in her obtaining a Protection Order against him. The court was required to consider the evidence presented by both parties regarding their relationship, the history of contact between Mr Mancera and X, and the suitability of Mr Mancera as a parent.

The court's primary task was to determine whether Mr Mancera should be granted contact with X and, if so, under what conditions. This involved examining the allegations of violence and aggression, the applicant's past behavior and history of sexual abuse, and the impact of these factors on his ability to be a responsible and safe parent. The court also needed to assess the evidence regarding the arrangements for contact and whether there were reasonable grounds to believe that Mr Mancera posed a risk to X.

Judge Tonkin found that Mr Mancera's history of violence, aggression, and sexual misconduct, as well as his lack of insight into these issues, made it unsafe for him to have contact with X. The court noted the serious allegations of sexual abuse against Mr Mancera, including incidents involving his sister, which were corroborated by records from the Department of Communities, Child Safety and Disabilities Services. Given these findings, the court dismissed the application, concluding that Mr Mancera was not a suitable person to have contact with X.

The final orders made by Judge Tonkin were that the application filed on 14 September 2016 be summarily dismissed, effectively barring Mr Mancera from having contact with X until further order of the court. This decision was based on the serious concerns about Mr Mancera's past behavior and its implications for the safety and well-being of X.

Orders

Orders of the court

BRC 9175 of 2016

BETWEEN:

MR MANCERA

Applicant

AND:

MS GADSBY

Respondent

ORDER MADE BY:

JUDGE TONKIN

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:

1. The application filed on 14 September 2016 is summarily dismissed.

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

Both parties were interviewed by the family consultant in January 2017. Both parties reported that their relationship was volatile. The child has not spent time or communicated with the applicant since December 2014 save he was observed briefly with the applicant for the preparation of the family report in January 2017. EVIDENCE According to the respondent between October 2011 and February 2012 the applicant saw the child in her home until she stopped him attending due to his “violent, aggressive and intimidating conduct”. She then organised for the child to spend time with the applicant in the presence of his extended family until about February 2013. She was also present. The respondent advised the family consultant that the applicant behaved in an impatient and angry manner and eventually lost interest in spending time with the child. In April 2013 the respondent was granted a Protection Order against the applicant for a period of 2 years. In May 2013 the respondent agreed to the applicant spending time with the child at a supervised contact centre however she said he refused to attend. She then arranged for Ms D to supervise the applicant’s time with the child. The respondent said Ms D became increasingly concerned about the applicant’s conduct in particular whether he presented under the influence of an illicit substance. She said the applicant failed to contact Ms D to organise contact visits and eventually ceased spending time with X in December 2014. The child was then two years and six months old. It is alleged that the applicant sent Ms D a text message on 24 October 2015 “not to contact him otherwise he would take her to Court”. The applicant denied the respondent’s version of arrangements for the child. He said the respondent stopped bringing the child to contact visits. However he agreed that he “cancelled contact with X” but said this was due to the respondent’s controlling conduct and his time with the child “became awkward”. Concerns raised in the Family Report The family consultant interviewed the applicant who advised her that he had suffered physical and mental abuse from his mother as a child and ongoing through adulthood. At the time of the interview he was his mother’s full time carer his mother being wheelchair bound. He lived with his mother and otherwise was not employed. The applicant told the family consultant that he was exposed to “sexual interactions with another person a family friend” and his mother “did nothing about it”. The perpetrator had been an older boy. He said he perceived these behaviours as normal and he had “sexually abused his sister as a young girl” stating “they tried to put me in prison”. He reported receiving counselling to address this behaviour. The family consultant observed that records from the Department of Communities, Child Safety and Disabilities Services indicated that the applicant had performed oral sex on his sister and made her perform oral sex on him on a number of occasions.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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