Moffett & Varrone - [2023] FedCFamC1F 232

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moffett & Varrone [2023] FedCFamC1F 232

File number(s): BRC 11482 of 2021

Judgment of: BAUMANN J

Date of judgment: 21 February 2023

Catchwords: FAMILY LAW – PARENTING – subject child almost 13 years of age – consent orders reached between parties – best interests of child

Legislation: Family Law Act 1975 (Cth)

Division: Division 1 First Instance

Number of paragraphs: 9

Date of last submission/s: 21 February 2023

Date of hearing: 21 February 2023

Place: Brisbane

Solicitor for the Applicant: Legal Aid Queensland

Solicitor for the First Respondent: Family Centred Law Pty Ltd

Solicitor for the Second Respondent: Aboriginal & Torres Strait Islander Legal Service

Independent Children's Lawyer: Ms Stewart, Stewart Family Law
ORDERS

BRC 11482 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MOFFETT

Applicant

AND:
MR VARRONE

First Respondent

MR PRITCHARD

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BAUMANN J

DATE OF ORDER:

21 FEBRUARY 2023

THE COURT ORDERS:
1.That all previous parenting orders in relation to the child, X born 2010 (“the child”) are discharged.
2.That the child live with the First Respondent Father, Mr Varrone.
3.That the First Respondent father shall have sole parental responsibility for the child.

Time and communication
4.That the child be at liberty to spend time with the Applicant sister, Ms Moffett, in accordance with the child’s wishes.
5.That the child spend day time with and communicate with the Second Respondent, Mr Pritchard as agreed between the First Respondent Father and the Second Respondent.

Restraints
6.That the Applicant, First Respondent and Second Respondent:
(a)respect the privacy of the other parties and not question the child about the personal life of the other parties;
(b)speak of the other parties respectfully;
(c)not denigrate or insult the other parties in the presence or hearing of the child;
(d)not be complicit with others in denigrating or insulting the other parties and use their best endeavours to ensure that others do not denigrate or insult the other parties in the hearing or presence of the child;
(e)not attempt to discuss any issues in dispute between the parties with the child or allow a third party to do so; and
(f)are restrained and an injunction is issued from allowing the child to have contact, of any nature, with Mr B.

7.That the Applicant and the First Respondent father shall keep the other informed of their residential address and contact telephone number and shall advise the other party within forty-eight (48) hours of any change occurring.

THE COURT ORDERS:
8.That the Independent Children’s Lawyer be discharged.

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…

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 Moffett & Varrone

Details

AGLC: Moffett & Varrone [2023] FedCFamC1F 232
Case: [2023] FedCFamC1F 232
Decision Date

CaseChat Overview and Summary

The case of Moffett & Varrone involved Ms Moffett, the sister of the child X, seeking to have X live with her instead of the father, Mr Varrone, and the grandfather, Mr Pritchard. The matter was heard by Baumann J in the Federal Circuit and Family Court of Australia (Division 1). The primary legal issue before the court was determining the best interests of X, an almost 13-year-old Indigenous child, in relation to her living arrangements and parental responsibilities.

The court had to consider the history and circumstances of X, who had experienced significant upheaval in her life, including the death of her biological mother when she was four years old. The court acknowledged the love and commitment of X's extended family, including her sister, father, and grandfather, in caring for her throughout her life. The court also had to take into account the allegations against Mr Pritchard, which were not appropriate to be addressed in family law proceedings. Ultimately, the court focused on the parties' ability to reach a consensus on the best interests of X and the importance of reducing conflict within her family.

In reaching its decision, the court found that Mr Varrone had taken on a more responsible role in caring for X, which provided Ms Moffett with the confidence to consent to the proposed orders. The court emphasised the importance of X's Indigenous heritage and was satisfied that the agreed orders would nurture and develop X's cultural identity. The court discharged all previous parenting orders, granting sole parental responsibility to Mr Varrone and outlining specific arrangements for X to spend time with Ms Moffett, Mr Pritchard, and others, as well as imposing restraints on the parties to protect X's well-being.

In summary, the court approved the consent orders reached by the parties, which were considered to be in the best interests of X. The court acknowledged the efforts of all the adults involved in X's life and focused on reducing conflict within her family to support her as she enters her teenage years. The court's decision aimed to provide stability and certainty for X while allowing her to maintain connections with her sister and other important people in her life.

Orders