FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ness & Firmin (No 2) [2024] FedCFamC2F 191
File number(s): AYC 144 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 February 2024 Catchwords: FAMILY LAW – final parenting orders – father have sole parental responsibility – children live with the father – whether the children spend supervised time with mother – risk of psychological and emotional harm to the children by undermining their relationship with other parent – where the mother cant be trusted to not denigrate the father and his family – mother attending final hearing via video link – concern of mothers mental health issues – orders for no time unless agreed in writing with father in changed circumstances Legislation: Evidence Act 1995 (Cth) s 140)
Family Law Act 1975 (Cth) s 60CA, s 60CC, s 60G, s 65DAC, s 67Z, s69ZW, s 128
Cases cited: Adamson & Adamson (2014) FLC 93-622
Bielen & Kozma (2022) FLC 94-12
Fox v Percy (2003) 214 CLR 118
Ness & Firmin [2023] FedCFamC2F 504
Division: Division 2 Family Law Number of paragraphs: 187 Date of hearing: 14, 15, 16, 17 March, 5 May 2023 Place: Melbourne Counsel for the Applicant: Mr J. Gates Solicitor for the Applicant: Myers Family Lawyers Counsel for the Respondent: Mr S. Howe Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Ms S. Taylor Solicitor for the Independent Children's Lawyer: Joliman Lawyers ORDERS
AYC 144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NESS
ApplicantAND: MS FIRMIN
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be and are discharged.
2.Mr Ness (‘the Father’) have sole parental responsibility for the children X born 2010, Y born 2012 and Z born 2014 (collectively referred to as “the children”).
3.The children live with the Father.
4.The children spend no time, and do not communicate, with Ms Firmin (‘the Mother’), unless agreed in writing (including by test message or email) between the Mother and the Father, and in the event of any dispute as to what was agreed, the last communication from the father shall prevail.
5.That pursuant to Section 68B of the Family Law Act 1975 (Cth) the Mother shall be and is hereby restrained from:
(a)attending at, approaching or being upon the premises of the school or any extracurricular activity attended by the children or any of them;
(b)contacting the Father or the children or any of them by any means whatsoever including through third parties, save as provided for in Order 5 herein;
(c)contacting the children’s school, medical and therapeutic practitioners or sporting clubs / extra-curricular activity organisers by and means whatsoever including through third parties;
(d)approaching the Father or the children or any of them at any time causing or encouraging any person to do so on her behalf;
(e)attending at or being 100 meters of any address at which the…
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- AGLC
- Ness & Firmin (No 2) [2024] FedCFamC2F 191
- Case
- [2024] FedCFamC2F 191
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the children should reside with the father and have no contact with the mother, considering the risk of psychological and emotional harm to the children from any contact. The court needed to assess the risk of the mother undermining the children's relationship with the father, as well as the mother's ability to be trusted not to denigrate the father and his family. The court also had to consider the mother's mental health issues and how they might affect the children.
In its decision, the court found that sole parental responsibility should be awarded to the father, and the children should live with him. The court was particularly concerned about the risk of psychological and emotional harm to the children if they were to spend time with the mother. It found that the mother could not be trusted not to denigrate the father and his family, which would be detrimental to the children's relationship with the father. The court concluded that the children should have no contact with the mother unless it was agreed in writing between the parents. The court also imposed restrictions on the mother's ability to attend the children's school or extracurricular activities and to contact the children or their school or medical practitioners. The mother was permitted to send the children letters, cards and gifts no more than once per school term and on special occasions.
The court made orders for sole parental responsibility to the father, for the children to live with him, and for the children to have no contact with the mother unless agreed in writing. The court also imposed restrictions on the mother's ability to attend the children's school or extracurricular activities and to contact the children or their school or medical practitioners. The mother was permitted to send the children letters, cards and gifts no more than once per school term and on special occasions. The court discharged the appointment of the Independent Children's Lawyer and dismissed all extant applications.
Orders
Orders of the court
AYC 144 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NESS
Applicant
AND:
MS FIRMIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS THAT:
1. All previous parenting orders be and are discharged.
2. Mr Ness (‘the Father’) have sole parental responsibility for the children X born 2010, Y born 2012 and Z born 2014 (collectively referred to as “the children”).
3. The children live with the Father.
4. The children spend no time, and do not communicate, with Ms Firmin (‘the Mother’), unless agreed in writing (including by test message or email) between the Mother and the Father, and in the event of any dispute as to what was agreed, the last communication from the father shall prevail.
5. That pursuant to Section 68B of the Family Law Act 1975 (Cth) the Mother shall be and is hereby restrained from:
(a) attending at, approaching or being upon the premises of the school or any extracurricular activity attended by the children or any of them;
(b) contacting the Father or the children or any of them by any means whatsoever including through third parties, save as provided for in Order 5 herein;
(c) contacting the children’s school, medical and therapeutic practitioners or sporting clubs / extra-curricular activity organisers by and means whatsoever including through third parties;
(d) approaching the Father or the children or any of them at any time causing or encouraging any person to do so on her behalf;
(e) attending at or being 100 meters of any address at which the Father resided from time to time or works.
6. The Mother be permitted to send the children letters, cards and gifts no more than once per school term and on special occasions (birthday/s, Christmas and Easter) to the children by delivery to the Father and he keep the Mother informed of a manner for the delivery of such letters, cards and gifts.
7. The Father provide the Mother with a written 3 monthly update by email regarding the children’s educational and medical progress, including but not limited to the provisions of any school and/or medical reports prepared in that time and the parties keep each other informed of email addresses suitable for this purpose.
8. Copies of any documents produced on subpoena held by any party be destroyed 29 days from these orders.
9. I discharge the appointment of the Independent Children’s Lawyer.
10. All extant applications are otherwise dismissed.
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
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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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