PENTON & DAWKINS - [2021] FCCA 1502

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENTON & DAWKINS

[2021] FCCA 1502

Catchwords:
FAMILY LAW – Parenting – family violence – child abduction – stalking – unresolved mental health issues – risks to child and mother outweigh what would otherwise be a significant benefit to the child in having a meaningful relationship with the father – no time or communication ordered – mother can be trusted to facilitate relationship in the future if the father adequately addresses his issues.

Legislation:
Family Law Act 1975 (Cth), ss.4AB(1), 60CA, 60CC(2), 60CC(2A), 60CC(3), 68B, 68C

Cases cited:
Betros & Betros [2017] FamCAFC 90
Oberlin & Infeld [2021] FamCAFC 66
Rice and Asplund (1979) FLC 90-725

Applicant:

MS PENTON

Respondent:

MR DAWKINS

File Number:

CAC 62 of 2018

Judgment of:

Judge Hughes

Hearing dates:

3, 4, 5, 6 and 21 February 2020

Date of Last Submission:

21 February 2020

Delivered at:

Canberra

Delivered on:

2 July 2021

REPRESENTATION

Counsel for the Applicant:

Mr Coleman SC

Solicitors for the Applicant:

Strong Law

Counsel for the Respondent:

Ms Christie SC

Solicitors for the Respondent:

Barker & Barker

Counsel for the Independent Children's Lawyer:

Ms McGregor

Solicitors for the Independent Children's Lawyer:

Legal Aid ACT

ORDERS

All previous parenting orders in relation to the child, X, born in 2015 (“the child”), are hereby discharged.
By consent the mother shall have sole parental responsibility for the child.
The child shall live with her mother.
The child shall have no time or communication with her father unless otherwise agreed in writing by the mother.
The mother is hereby authorised to obtain an Australian passport for the child without the consent of the father.
The mother is permitted to arrange for international travel for the child without the consent of the father.
The father may provide the following documents to any psychiatrist, psychologist or mental health practitioner engaged by him for the purpose of therapy:
(a)these orders and reasons for judgment;
(b)the family report of Ms B dated 11 November 2019;
(c)the reports of Mr C dated 20 June 2018 and 9 October 2019;
(d)the report of Dr D dated 19 December 2019; and
(e)the transcript of the father’s phone calls to various people while incarcerated which were tendered as exhibit M5 on 4 February 2020.
Pursuant to section 68B of the Family Law Act 1975, unless otherwise agreed in writing by the mother, the father is hereby restrained from:
(a)approaching within 100 metres of the child;
(b)approaching within 100 metres of the mother;
(c)approaching within 100 metres of the mother’s residence;
(d)approaching within 100 metres of the mother’s place of employment, except to obtain urgent medical attention or for a planned admission to hospital and, in that circumstance, the father shall advise the mother’s solicitors in writing with as much notice as possible prior to the admission;
(e)approaching within 100 metres of the child’s school or any venue at which the child is engaged in extra-curricular activities;
(f)removing the child from the care of the mother or from her…

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: [2021] FCCA 1502
Decision Date: 2 July 2021

CaseChat Overview and Summary

In Penton & Dawkins, heard by Judge Hughes, the dispute concerned parenting orders for a child born in 2015. The proceedings involved allegations of family violence, child abduction, stalking, and unresolved mental health issues on the part of the father. The central question before the court was whether the risks posed by the father to the child and the mother outweighed any potential benefit to the child of maintaining a meaningful relationship with him.

The court was required to determine the appropriate parenting arrangements for the child, specifically addressing the father's contact with the child and the mother's parental responsibility. This involved assessing the impact of the father's conduct and mental health on the child's safety and well-being, and considering whether any form of time or communication with the father was in the child's best interests. The court also had to consider the mother's ability to facilitate a future relationship if the father's issues were adequately addressed.

Judge Hughes reasoned that the risks presented by the father, including family violence, stalking, and mental health concerns, were significant and detrimental to the child and mother. Consequently, the court found that these risks outweighed the potential benefit of the child having a relationship with the father at that time. The court applied principles of child welfare and safety under the Family Law Act 1975, prioritising the protection of the child and mother from harm.

The court ordered the discharge of all previous parenting orders and, by consent, granted the mother sole parental responsibility for the child. The child was ordered to live with the mother and have no time or communication with the father unless otherwise agreed in writing by the mother. The mother was authorised to obtain an Australian passport for the child and arrange international travel without the father's consent. The father was restrained from approaching within 100 metres of the child, mother, mother's residence, or place of employment, and from approaching the child's school or extra-curricular venues. He was also prohibited from removing the child, communicating with the mother or child except through legal representatives, harassing, molesting, stalking, or causing or threatening bodily harm to either of them. The court also noted an undertaking by the father regarding not attempting to discover the mother and child's residence, place of work, or school.

Orders

Orders of the court

All previous parenting orders in relation to the child, X, born in 2015 (“the child”), are hereby discharged.

By consent the mother shall have sole parental responsibility for the child.

The child shall live with her mother.

The child shall have no time or communication with her father unless otherwise agreed in writing by the mother.

The mother is hereby authorised to obtain an Australian passport for the child without the consent of the father.

The mother is permitted to arrange for international travel for the child without the consent of the father.

The father may provide the following documents to any psychiatrist, psychologist or mental health practitioner engaged by him for the purpose of therapy:

(a) these orders and reasons for judgment;

(b) the family report of Ms B dated 11 November 2019;

(d) the report of Dr D dated 19 December 2019; and

(e) the transcript of the father’s phone calls to various people while incarcerated which were tendered as exhibit M5 on 4 February 2020.

Pursuant to section 68B of the Family Law Act 1975, unless otherwise agreed in writing by the mother, the father is hereby restrained from:

(a) approaching within 100 metres of the child;

(b) approaching within 100 metres of the mother;

(d) approaching within 100 metres of the mother’s place of employment, except to obtain urgent medical attention or for a planned admission to hospital and, in that circumstance, the father shall advise the mother’s solicitors in writing with as much notice as possible prior to the admission;

(e) approaching within 100 metres of the child’s school or any venue at which the child is engaged in extra-curricular activities;

(f) removing the child from the care of the mother or from her school or any venue at which she is engaged in extra-curricular activities;

(g) communicating or attempting to communicate with the mother or the child except through the mother’s legal representatives;

(h) harassing, molesting or stalking the mother or the child; and

(i) causing or threatening to cause bodily harm to the mother or the child.

Pursuant to section 68C of the Family Law Act 1975, there being in force an injunction for the personal protection of the mother and the child, if a police officer believes on reasonable grounds that the father has breached the injunction by:

(a) causing or threatening to cause bodily harm to the mother or the child; and/or

(b) harassing, molesting or stalking the mother and/or the child;

the police officer may arrest the father without a warrant.

AND THE COURT NOTES the undertaking given by the father on 5 February 2020 that he will not:

(i) attempt to discover the place of residence of the mother and child;

(ii) attempt to discover where the mother works; or

(iii) attempt to discover where the child attends school.

10.

Otherwise, all extant applications are hereby dismissed.

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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