Otieno & Mwangi - [2022] FedCFamC2F 469

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Otieno & Mwangi [2022] FedCFamC2F 469

File number(s): DGC 2544 of 2013

Judgment of: JUDGE BURCHARDT

Date of judgment: 20 April 2022

Catchwords: FAMILY LAW – Parenting dispute about best interests of 14 year old girl and 12 year old boy – father seeking eight/six regime in his favour – three court appointed experts expressing concerns about the father’s mental health if he refuses ongoing treatment – father denying all mental health difficulties and refusing to undertake treatment – family consultant initially recommending nine/five regime in favour of the mother but changing this to daytime only after being made aware of the father’s position – orders made as sought by the Independent Children’s Lawyer.

Legislation: Family Law Act 1975 (Cth)

Cases cited: Goode v Goode [2006] FamCA 1346

Division: Division 2 Family Law

Number of paragraphs: 149

Date of last submission/s: 8 April 2022

Date of hearing: 17–18 March 2022

Place: Dandenong

Counsel for the Applicant: Mr Chislett and Mr Thomas

Solicitor for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Ms Dwyer

Solicitor for the Respondent: Alfred P Mayuka

Counsel for the Independent Children's Lawyer: Ms Agresta

Solicitor for the Independent Children's Lawyer: Ce Family Lawyers
ORDERS

DGC 2544 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR OTIENO

Applicant

AND:
MS MWANGI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

20 APRIL 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children X born 2008 and Y born 2010 (“the children”).
3.The children live with the mother.
4.In relation to the mother’s sole parental responsibility, the mother must inform the father in writing of the decision that she has made.
5.The mother is authorised and permitted to apply for and receive an Australian passport for the children X born 2008 and Y born 2010 without first obtaining the written consent of the other parent.
6.The children X born 2008 and Y born 2010 be permitted to depart the Commonwealth of Australia.
7.The children spend time and communicate with the father as follows:
(a)On alternate weekends from 8.00 am-7.00 pm on Saturday commencing on Saturday 23 April 2022;

Special Days
(b)For Father’s Day and the father’s birthday from 8.00 am-8.00 pm;
(c)For the children’s birthday with the father in even years for the morning from 8.00 am-3.30 pm and the mother from 3.30 pm-8.00 pm;
(d)Subject to school commitments/attendance, the children’s birthday with the mother in odd years for the morning from 8.00 am-3.30 pm and the father from 3.30 pm-8.00 pm;
(e)For Easter from 8.00 am-8.00 pm on one day over the Easter long weekend subject to the availability of Ms B (or other agreed person);
(f)For Christmas Day with the father in even years for the morning from 8.00 am-3.30 pm and in odd years from 3.30 pm-8.00 pm.

Additional contact and communication
(g)Otherwise the children spend time with…

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 Otieno & Mwangi

Details

AGLC: Otieno & Mwangi [2022] FedCFamC2F 469
Case: [2022] FedCFamC2F 469
Decision Date

CaseChat Overview and Summary

This is a parenting and property dispute between Mr Otieno and Ms Mwangi, parents of two children X and Y. The central issue is the best interests of the children. The father sought an eight/six regime in his favour, while the mother sought supervised time in small tranches. The court considered the evidence of the parties, the expert evidence, and the statutory pathway under the Family Law Act 1975. The court found that the father's family violence and refusal to accept his mental health issues and engage in treatment made it contraindicated to apply the presumption of equal shared parental responsibility. The court also found that the father had not prosecuted the property component of his proceeding with due diligence and had no reasonable prospects of success. The court made orders in the children's best interests, granting sole parental responsibility to the mother and dismissing all property applications.

Orders