Montilla & Puno - [2022] FedCFamC2F 1432

Federal Circuit and Family Court of Australia
(DIVISION 2)
Montilla & Puno [2022] FedCFamC2F 1432

File number(s): ADC 2726 of 2018

Judgment of: JUDGE STREET

Date of judgment: 28 October 2022

Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – where the applicant father is incarcerated and is likely to be incarcerated for an extended period of time – where there was a consent position as to certain final orders – where the Court finds unacceptable risk to respondent mother and children outweighs benefit of time with applicant father

Legislation: Family Law Act 1975 (Cth) pt VII; divs 2, 11; ss 4, 4AB, 43(1), 60B, 60CA, 60CC, 60CG,

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Clayton & Minshall [2021] FedCFamC1F 183

Goode & Goode [2006] FamCA 1346

Isles v Nelissen [2022] FedCFamC1A 97

Stott & Holgar and Anor [2017] FamCAFC 152

Division: Division 2 Family Law

Number of paragraphs: 25

Date of hearing: 17 October 2022

Place: Parramatta

Solicitor for the Applicant: Mr Wabnitz, Daniel John Lawyers

Counsel for the Respondent: Ms Pangallo

Solicitor for the Respondent: Denise M Rieniets & Associates Pty Ltd
ORDERS

ADC 2726 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MONTILLA

Applicant

AND:
MS PUNO

Respondent

order made by:

JUDGE STREET

DATE OF ORDER:

17 OCTOBER 2022

THE COURT ORDERS THAT:
1.Any earlier parenting orders are vacated.
2.The respondent mother have sole parental responsibility for the children X born in 2014, Y born in 2013, and Z born in 2017 (“the Children”).
3.The Children live with the respondent mother.
4.The Children spend no time with the applicant father.
5.The applicant father be restrained by injunction from:
(a)Attending any childcare facility, kindergarten, school, hospital, medical practice, therapeutic centre, clinic or the respondent mother’s residence which the Children or the respondent mother may be attending;
(b)Removing the Children from any childcare facility, kindergarten, school, hospital, medical practice, therapeutic centre, clinic or the respondent mother’s residence or any other premises;
(c)Contacting via telephone the maternal grandmother or other family members of the mother to obtain information about the Children or the respondent mother.

6.The Court’s reasons for the above orders are reserved.

THE COURT NOTES THAT:
A.No opposition was raised by the applicant father to the injunctive orders. The applicant father consented to the parental responsibility, live with and spend no time with orders above.

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.
IT…

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 Montilla & Puno

Details

AGLC: Montilla & Puno [2022] FedCFamC2F 1432
Case: [2022] FedCFamC2F 1432
Decision Date

CaseChat Overview and Summary

This case involved a final parenting hearing in relation to three children of the relationship between Mr Montilla (the applicant father) and Ms Puno (the respondent mother). The hearing was held on 17 October 2022, concerning proceedings that were commenced on 11 July 2018. The applicant father was on remand at the time of the hearing, facing offences that are likely to result in a custodial sentence if convicted. The respondent mother had made an application for final parenting orders in relation to the children, seeking sole parental responsibility for the children, for the children to live with her, and for there to be no time with the applicant father. The applicant father consented to these orders but neither consented to nor opposed the injunctive orders sought by the respondent mother.

The court considered the evidence presented, including the family report and other affidavit material. The court found that the applicant father had a history of serious adverse conduct, including multiple breaches of restraining orders and ongoing mental health issues that had not been adequately addressed. The court was satisfied that the proposed consent orders were appropriate and in the best interests of the children. The court found that the risk of harm to the children, particularly the youngest child who has a cardiac condition, was significant due to the applicant father's ongoing mental health issues. The court also found that the risk of the respondent mother losing her parenting capacity due to the serious breaches by the applicant father and his ongoing mental health issues was high. The court concluded that the risk of parental incapacity of the live-with parent outweighed the possible benefit to the children from time with the applicant father.

In relation to the proposed injunctive relief, the respondent mother sought orders preventing the applicant father from attending facilities that the children would attend, or from attempting to remove the children from the respondent mother, or from facilities being attended by the children. The court was satisfied that it was appropriate to make the injunctive orders as identified, on the basis that they were in the best interests of the children and were orders most likely to prevent any future family violence. The court made the orders sought by the respondent mother, including restraining the applicant father from attending certain facilities, removing the children from certain facilities, and contacting the respondent mother's family. The applicant father did not oppose these orders.

The court made orders vacating any earlier parenting orders, granting sole parental responsibility to the respondent mother, requiring the children to live with the respondent mother, and prohibiting any time between the applicant father and the children. The court also made injunctive orders restraining the applicant father from attending certain facilities, removing the children from certain facilities, and contacting the respondent mother's family. The reasons for the orders were reserved.

Orders