Pegg and Pegg - [2017] FCCA 402

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEGG & PEGG

[2017] FCCA 402

Catchwords:
FAMILY LAW – Parenting – where father has not spent time with children for several years – where father presents a risk of harm to the children – where no contact or communication ordered.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MS PEGG

Respondent:

MR PEGG

File Number:

WOC 503 of 2010

Judgment of:

Judge Altobelli

Hearing dates:

9 and 10 February 2017

Date of Last Submission:

10 February 2017

Delivered at:

Wollongong

Delivered on:

5 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Cook

Solicitors for the Applicant:

Antoinette Campbell Legal

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Mr Stagg

Solicitors for the Independent Children's Lawyer:

Evans Family Lawyers

ORDERS

All previous parenting Orders are discharged.
The Mother have sole parental responsibility for the children, X (born (omitted) 2001) and Y (born (omitted) 2004) (“the children”).
The children live with the Mother.
The Father spends no time with or communicates with the children.
The Father is restrained, pursuant to section 68B of the Family Law Act 1975 from:-
(a)Attempting to contact the mother or the children by any means, including through a third party;
(b)Approaching, or coming within 100 metres of any place where the mother or the children might from time to time reside;
(c)Approaching, or coming within 100 metres of any school which the children might attend or at which they are enrolled;
(d)Approaching, or coming within 100 metres of any place where the children participate in an extra-curricular activity; or
(e)Approaching, or coming within 100 metres of the mother’s place of employment.

IT IS NOTED that publication of this judgment under the pseudonym Pegg & Pegg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 503 of 2010

MS PEGG

Applicant

And

MR PEGG

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children, X, who is now 16 years old, and his brother, Y, who is twelve and a half. The application is brought by their father who is 43 years old, lives in (omitted), New South Wales and is a Pensioner. The Respondent is the children’s mother. She is also 43 years old, lives in the (omitted) of New South Wales and describes herself as a (occupation omitted).
The relationship between the parents commenced in 1991. They married in 1999 and separated towards the end of 2007.
This case is about whether, and if so under what conditions, the children should spend time with their father. These reasons for judgment explain the orders that the Court has made.

Background

There are relatively few contentious facts in this case. Unless indicated to the contrary, the matters set out in this section represent findings of the Court.
After physical separation in the beginning of 2008, the parents implemented an informal parenting agreement whereby the…

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 Pegg and Pegg

Details

AGLC: Pegg and Pegg [2017] FCCA 402
Case: [2017] FCCA 402
Decision Date: 5 May 2017

CaseChat Overview and Summary

In the matter of *Pegg and Pegg*, heard before Judge Altobelli, the dispute concerned parenting orders for two children, X and Y. The specific nature of the dispute leading to the final orders is not detailed, but the court was required to make determinations regarding the children's living arrangements, parental responsibility, and the extent of contact between the children and each parent.

The court was tasked with determining the most appropriate parenting arrangements for the children, considering the welfare and best interests of X and Y. This involved deciding on sole or shared parental responsibility, where the children would live, and the nature and extent of any time or communication the Father would have with the children. Furthermore, the court considered whether to impose restrictions on the Father's conduct towards the Mother and children, pursuant to section 68B of the *Family Law Act 1975*.

Judge Altobelli discharged all previous parenting orders. The court ordered that the Mother have sole parental responsibility for the children, and that the children live with the Mother. Crucially, the Father was ordered to spend no time with or communicate with the children. In addition, the Father was restrained, under section 68B of the *Family Law Act 1975*, from attempting to contact the Mother or children, approaching within 100 metres of their residence, schools, extra-curricular activity locations, or the Mother's place of employment.

Orders

Orders of the court

All previous parenting Orders are discharged.

The Mother have sole parental responsibility for the children, X (born (omitted) 2001) and Y (born (omitted) 2004) (“the children”).

The children live with the Mother.

The Father spends no time with or communicates with the children.

The Father is restrained, pursuant to section 68B of the Family Law Act 1975 from:-

(a) Attempting to contact the mother or the children by any means, including through a third party;

(b) Approaching, or coming within 100 metres of any place where the mother or the children might from time to time reside;

(c) Approaching, or coming within 100 metres of any school which the children might attend or at which they are enrolled;

(d) Approaching, or coming within 100 metres of any place where the children participate in an extra-curricular activity; or

(e) Approaching, or coming within 100 metres of the mother’s place of employment.

Background

Background to the litigation

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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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