Newett & Newett (No 2) - [2022] FedCFamC1F 439

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Newett & Newett (No 2) [2022] FedCFamC1F 439

File number(s): BRC 2179 of 2018

Judgment of: BAUMANN J

Date of judgment: 8 July 2022

Catchwords:
FAMILY LAW – PARENTING – Contested residence – Where the Court finds the mother is an emotional and psychological risk to the children – Where the Court finds the mother would be unable to facilitate and support the children having any relationship with their father – Allegations of family violence – Where the Court adopts some of the findings made by the Magistrates Court of Queensland and District Court of Queensland pursuant to s 69ZX(3) of the Act – Allegations of sexual abuse – Consideration of M v M (1988) 166 CLR 69 – Where it is not open on the evidence to find the father has or is likely to sexually abuse the children – Where the presumption for equal shared parental responsibility is rebutted – Orders made for the children to live with the father and for the father to have sole parental responsibility – Where any time between the children and the mother must be professionally supervised – Where the mother’s evidence is that she would not take up any order that required the children’s time with her to be supervised – Order for supervised time made.

FAMILY LAW – PRACTICE & PROCEDURE – Vexatious litigant order – Application for a vexatious litigant order pursuant to s 102QE of the Family Law Act 1975 (Cth) – Where the mother has frequently filed applications in this Court and other courts – Application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB(1), 4AB(2), 60B, 60CC, 61DA, 69ZX(3). 102QB, 102QE

Cases cited:
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Bloomberg & Rod [2010] FamCAFC 112

Briginshaw v Briginshaw (1938) 60 CLR 336

Duarte & Morse [2022] FedCFamC1A 66

Jones & Dunkel (1959) 101 CLR 298

M v M (1988) 166 CLR 69

Moose & Moose (2008) FLC 93-375

Newett & Newett [2019] FCCA 619

Newett & Newett [2020] FamCAFC 76

Newett & Newett [2021] FamCA 82

Newett & Newett (No. 8) [2020] FamCA 1056

Newett & Newett & Anor [2020] FamCA 470

Newett & Newett and Anor (No. 2) [2020] FamCA 745

Newett & Newett and Anor (No. 3) [2020] FamCA 822

Newett & Newett and Anor (No. 4) [2020] FamCA 856

Newett & Newett and Anor (No. 5) [2020] FamCA 1023

Newett & Newett [2021] FamCA 82

Newett & Newett (No. 3) [2021] FamCA 187

Newett & Newett (No. 4) [2021] FamCA 318

Newett & Newett (No. 5) [2021] FamCA 383

Newett & Newett (No. 6) [2022] FedCFamC1A 70

Rice & Asplund (1979) FLC 90-725

Rod & Bloomberg [2008] FamCA 487

Sandex & Bondir (No. 2) [2017] FamCAFC 130

Shell & Armel [2022] FedCFamC1A 83

Stott & Holgar and Anor [2017] FamCAFC 152

TF & JF & Children's Representative (2005) FLC 93-227

Division: Division 1 First…

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.

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Details

Case: [2022] FedCFamC1F 439
Decision Date

CaseChat Overview and Summary

This case concerns a long running and contentious dispute between the parties about the care and welfare of three daughters, X, Y and Z. The parties separated in January 2018. The mother is of the view that the father is a domestically violent person who has sexually abused the children. The father denies these allegations. The mother has been highly litigious and has filed numerous applications and appeals in this Court and in other courts. The father sought an order pursuant to s 102QE of the Family Law Act 1975 (Cth) that the mother be restrained from instituting further proceedings against him without leave of the Court. The Court dismissed the application. The Court found that the mother is an emotional and psychological risk to the children. The Court also found that the mother would be unable to facilitate and support the children having any relationship with their father. The Court made orders for the children to live with the father and for the father to have sole parental responsibility. The Court made orders for the children to spend supervised time with the mother. The Court restrained the mother from contacting the children in any way. The Court also restrained the maternal grandmother from contacting the children in any way. The Court restrained the mother from attending or contacting the children’s educational facilities, sporting or extra-curricular activity providers, counsellors or medical practitioners. The Court restrained the maternal grandmother from attending or contacting the children’s educational facilities, sporting or extra-curricular activity providers, counsellors or medical practitioners. The Court restrained the maternal grandmother from causing the children to attend upon any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental health professional. The Court restrained the mother and maternal grandmother from disseminating any information about the father to any parents of the children who attend the children’s educational facilities, sporting or extra-curricular activity providers, counsellors or medical practitioners.

Orders