Maynard & Frye

Case [2023] FedCFamC2F 354


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Maynard & Frye [2023] FedCFamC2F 354   

File number(s): PAC 3231 of 2016
Judgment of: JUDGE OBRADOVIC
Date of judgment: 30 March 2023
Catchwords: FAMILY LAW – Final Parenting – Allegations of physical, emotional, psychological and financial abuse – Criminal convictions – Unacceptable risk – Children to live with mother and spend no time with father  
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61DA, 65DAA
Cases cited:

Banks & Banks [2015] FamCAFC 36

Isles v Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

M & M (1989) 166 CLR 69

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law
Number of paragraphs: 205
Date of last submission/s: 15 November 2022
Date of hearing: 14-15 November 2022
Place: Parramatta
Counsel for the Applicant: Mr Mifsud
Solicitor for the Applicant: John Stonham & Co
Counsel for the Respondent: Mr Francis
Solicitor for the Respondent: City Lawyers & Consultants
Counsel for the Independent Children's Lawyer: Mr Ladopoulos
Solicitor for the Independent Children's Lawyer: Legal Aid NSW
Table of Corrections
14 May 2024

At [19] the words “The phrase “unacceptable risk” does not appear anywhere in the Act.[1] However,” are deleted.

[1] Isles v Nelissen [2022] FedCFamC1A 97, [58] (“Isles v Nelissen”).

ORDERS

PAC 3231 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MAYNARD

Applicant

AND:

MR FRYE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

30 MARCH 2023

THE COURT ORDERS THAT:

1.The mother shall have sole parental responsibility for X born 2006 and Y born 2012 (“children”).

2.The children shall live with the mother.

3.The children shall spend no time with the father.

4.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother shall be authorised to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.

5.The names of the children, X born 2006 and Y born 2012 be removed from the Airport Watch List and it is requested that the Australian Federal Police do all such things to facilitate this request.

6.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father MR FRYE born 1966 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the mother MS MAYNARD born 1969 by any means whatsoever, including through any third party and further, MR FRYE is restrained from:

(a)Attending at or being within 100 metres of the ordinary place of residence of MS MAYNARD; and

(b)Attending at or being within 100 metres of any place of employment of MS MAYNARD.

7.Pursuant to Section 68B of the Family Law Act 1975 (Cth), the father MR FRYE born 1966 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the children,…

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AGLC
Maynard & Frye [2023] FedCFamC2F 354
Case
[2023] FedCFamC2F 354
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by Ms Maynard for sole parental responsibility of her two children, X born in 2006 and Y born in 2012, and for orders preventing Mr Frye, the father of the children, from having any contact with them. The court had to determine the best interests of the children, considering the allegations of physical, emotional, psychological and financial abuse against the father. The court also needed to assess the risk to the children if they were to spend time with the father and whether there were any unacceptable risks to the children if they were to live with or spend time with the father.

The court found that the allegations of abuse against the father were credible and that there was an unacceptable risk to the children if they were to live with or spend time with him. The court was satisfied that the father posed a significant risk of harm to the children and that it was in their best interests to have no contact with him. The court also found that the mother was a suitable person to have sole parental responsibility for the children. The court made orders for the children to live with the mother and for the father to have no contact with them. The court also made orders for the father to be restrained from contacting the mother and the children and from attending certain locations.

The court noted that the orders made were in the best interests of the children and that they provided a safe and stable environment for them to grow and develop. The court also noted that the orders made were necessary to protect the children from the father and to prevent any further harm or abuse.

The court made orders that the mother shall have sole parental responsibility for the children, that the children shall live with the mother, and that the children shall spend no time with the father. The court also made orders for the father to be restrained from contacting the mother and the children and from attending certain locations. The court made orders for the mother to be authorised to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion and for the children's names to be removed from the Airport Watch List. The court also made orders for the father to be restrained from contacting or approaching the mother or the children by any means whatsoever, including through any third party. The court made orders for the father to be restrained from attending at or being within 100 metres of the ordinary place of residence of the mother and the children, and any school, place of employment, or educational institution attended by the children. The court noted that the orders made were in the best interests of the children and that they provided a safe and stable environment for them to grow and develop. The court also noted that the orders made were necessary to protect the children from the father and to prevent any further harm or abuse.

Orders

Orders of the court

PAC 3231 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MAYNARD

Applicant

AND:

MR FRYE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

30 MARCH 2023

THE COURT ORDERS THAT:

1. The mother shall have sole parental responsibility for X born 2006 and Y born 2012 (“children”).

2. The children shall live with the mother.

3. The children shall spend no time with the father.

4. Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother shall be authorised to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.

5. The names of the children, X born 2006 and Y born 2012 be removed from the Airport Watch List and it is requested that the Australian Federal Police do all such things to facilitate this request.

6. Pursuant to section 68B of the Family Law Act 1975 (Cth), the father MR FRYE born 1966 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the mother MS MAYNARD born 1969 by any means whatsoever, including through any third party and further, MR FRYE is restrained from:

(a) Attending at or being within 100 metres of the ordinary place of residence of MS MAYNARD; and

(b) Attending at or being within 100 metres of any place of employment of MS MAYNARD.

7. Pursuant to Section 68B of the Family Law Act 1975 (Cth), the father MR FRYE born 1966 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the children, X born 2006 and Y born 2012 by any means whatsoever, including through any third party and further, MR FRYE is restrained from:

(a) Attending at or being within 100 metres of the ordinary place of residence of the children, X born 2006, and Y born 2012; and

(b) Attending at or being within 100 metres of any school, place of employment, or educational institution attended by the children, X born 2006 and Y born 2012.

8. Notwithstanding Orders 3, 6 & 7 above, should the children, or either of them, seek to initiate contact with the father when they are older, they can email him at …@... and should the email from the children invite a response, the father shall be at liberty to reply.

THE COURT NOTES THAT:

A. Order 1 vests in the mother sole parental responsibility for the purpose of the Australian Passports Act 2005 (Cth) such that the mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the father.

B. Orders 6 and 7 herein and each of their subparagraphs pursuant to section 68B of the Family Law Act 1975 (Cth) are injunctions to which section 68C would apply and accordingly, any police officer made aware of these orders and whom on reasonable grounds believes that such orders and injunctions have been breached by the father MR FRYE by either harassing, molesting, stalking or physically harming or threatening to harm the mother MS MAYNARD and/or the children, X born 2006 and Y born 2012 may arrest the father without warrant.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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