PICTON & ALLEVA - [2021] FCCA 10

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICTON & ALLEVA

[2021] FCCA 10

Catchwords:
FAMILY LAW – Parenting – family violence – children fearful of father – weight to be given to children’s wishes – children aged 16 and 14 - children have not seen father for 8 years.

Legislation:

Family Law Act 1975 (Cth), ss.4; 60B; 60CA; 60CC61B; 61C; 61DA; 65DAA;

65DAC

Evidence Act 1995 (Cth), s.140

Cases cited:

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4

Applicant:

MR PICTON

Respondent:

MS ALLEVA

File Number:

BRC 3767 of 2011

Judgment of:

Judge Lapthorn

Hearing dates:

26, 27 May & 6 July 2020

Date of Last Submission:

6 July 2020

Delivered at:

Brisbane

Delivered on:

13 January 2021

REPRESENTATION

Counsel for the Applicant:

Mr Kennedy

Solicitors for the Applicant:

HCM Legal

Counsel for the Respondent:

Mr Jones

Solicitors for the Respondent:

Cornerstone Law Offices

Counsel for the Independent Children's Lawyer:

Ms Fraser

Solicitors for the Independent Children's Lawyer:

Julie Harrington Solicitor

ORDERS

That the children, X born in 2004 and Y born in 2006 (“the children”) live with the mother.
That the mother have sole parental responsibility for the children.
That the children spend time or communicate with the father at such times as initiated by the children.
That the father be restrained from approaching the children or attending the children's school or extracurricular activities unless invited by the mother or the children in writing.
That the father be at liberty to provide his current contact details to the children's school.
That each party be restrained from denigrating the other to or in the presence of or the hearing of the children.
That the mother give the father 14 days notice of any intention to remove the children from their school and within 2 days of enrolment at a new school she must advise the father of the name, address, telephone and email contact details for the new school the children are enrolled in, so as to enable him to provide his details to the school pursuant to Order 5 hereof.
That leave be granted to the Independent Children's Lawyer to publish the reasons for judgment to the principal of the children’s school and in the event that the mother removes the children from their current school after the discharge of the Independent Children's Lawyer the father shall be at liberty to contact the children’s new school and provide them with a copy of the reasons for judgment along with his contact details.
That within 14 days of the date of these orders the mother cause the children to meet with the Independent Children’s Lawyer as arranged to enable the Independent Children’s Lawyer to explain these orders to the children.
That upon the satisfaction of Orders 8 and 9 hereof, the Independent Children's Lawyer be discharged.

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

FEDERAL…

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 PICTON & ALLEVA

Details

AGLC: PICTON & ALLEVA [2021] FCCA 10
Case: [2021] FCCA 10
Decision Date: 13 January 2021

CaseChat Overview and Summary

In the matter of *PICTON & ALLEVA*, heard by Judge Lapthorn, the dispute concerned parenting arrangements for two children, X (born 2004) and Y (born 2006). The mother sought orders for the children to live with her and for her to have sole parental responsibility. The children had not seen their father for eight years and expressed fear of him.

The court was required to determine the weight to be given to the children's wishes, given their ages of 16 and 14, and to make orders regarding the children's living arrangements, parental responsibility, and their time and communication with the father, in light of the alleged family violence and the children's fear.

Judge Lapthorn reasoned that the children's expressed fear of the father was a significant factor in determining their best interests. The court applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to the paramountcy of the child's welfare and best interests, and the consideration of the child's views. The court ordered that the children live with the mother and that she have sole parental responsibility. The father was to spend time or communicate with the children only at times initiated by the children, and he was restrained from approaching them or attending their school or extracurricular activities unless invited in writing by the mother or the children. The court also made orders regarding the father's ability to provide his contact details to the children's school and for each party to refrain from denigrating the other to the children. Further orders addressed notification of school changes and the role of the Independent Children's Lawyer.

Orders

Orders of the court

That the children, X born in 2004 and Y born in 2006 (“the children”) live with the mother.

That the mother have sole parental responsibility for the children.

That the children spend time or communicate with the father at such times as initiated by the children.

That the father be restrained from approaching the children or attending the children's school or extracurricular activities unless invited by the mother or the children in writing.

That the father be at liberty to provide his current contact details to the children's school.

That each party be restrained from denigrating the other to or in the presence of or the hearing of the children.

That the mother give the father 14 days notice of any intention to remove the children from their school and within 2 days of enrolment at a new school she must advise the father of the name, address, telephone and email contact details for the new school the children are enrolled in, so as to enable him to provide his details to the school pursuant to Order 5 hereof.

That leave be granted to the Independent Children's Lawyer to publish the reasons for judgment to the principal of the children’s school and in the event that the mother removes the children from their current school after the discharge of the Independent Children's Lawyer the father shall be at liberty to contact the children’s new school and provide them with a copy of the reasons for judgment along with his contact details.

That within 14 days of the date of these orders the mother cause the children to meet with the Independent Children’s Lawyer as arranged to enable the Independent Children’s Lawyer to explain these orders to the children.

10.

That upon the satisfaction of Orders 8 and 9 hereof, the Independent Children's Lawyer be discharged.

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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