Pointer & Cheadle - [2022] FedCFamC2F 79

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pointer & Cheadle [2022] FedCFamC2F 79

File number(s): SYC 7391 of 2013

Judgment of: JUDGE TAGLIERI

Date of judgment: 2 February 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Judicial Registrar’s decision – interim parenting – order made that mother to have supervised time with child for 3 hours per fortnight – desirable to moderate respective risk – application for review allowed – mother’s time with child to increase once treatment undertaken.

Legislation: Family Law Act 1975 (Cth), ss.60CC(2A), 60CC(3)
Federal Circuit an2d Family Court of Australia Act 2021, ss.8, 51(1), 51(2)(b), 132, 51(2)(b), 254
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), s.8
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth), r.5
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), Part 14.3, Schedule 4 Clause 2, rr.5.01, 14.05(2), 14.07

Cases cited: Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marvel & Marvel [2010] FamCAFC 101
Matenson & Matenson (2018) FLC 93-848
Moose and Moose [2008] FamCAFC 108
MRR & GR [2010] HCA 4
Rice and Asplund (1979) 6 Fam LR 570

Division: Division 2 Family Law

Number of paragraphs: 119

Date of hearing: 15 December 2021

Place: Hobart

Counsel for the Applicant: Mr Battley

Solicitor for the Applicant: Team Legal Group

Counsel for the Respondent: Ms Bryan

Solicitor for the Respondent: Sayer Jones

Counsel for the Independent Children’s Lawyer: Ms Escobar

Solicitor for the Independent Children’s Lawyer: Clayhills Escobar Solicitors
ORDERS

SYC 7391 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR POINTER

Applicant

AND:
MS CHEADLE

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The orders of 29 September 2021 be discharged.
2.Orders 5, 6, 8, 9, 10 and 11 of the final orders made 26 March 2020 be discharged.

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
3.The mother MS CHEADLE (“the mother”) is to complete six, 1 hour appointments of psychological treatment with a clinical psychologist nominated by the Independent Children’s Lawyer (“the mother’s treating psychologist”) and for this purpose:
(a)The Independent Children’s Lawyer, is to provide to the mother’s treating psychologist the following:
(i)These reasons for judgment;
(ii)The Child Inclusive Conference Memorandum dated 8 July 2021; and
(iii)A copy of these orders.

(b)Treatment is to be directed to:
(i)The prior findings of McClelland DCJ that the mother has traits of anxiety and/or worry which are influencing the child’s relationship with the father MR POINTER (“the father”);;
(ii)The mother’s parenting style and improving it; and
(iii)Adapting to and accepting the father’s involvement in parenting the child.

4.Within 14 days of completing the six treatment appointments referred to in Order 3, the mother must file and serve a report from the treating psychologist on the Independent Children’s Lawyer and the father, which…

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 Pointer & Cheadle

Details

AGLC: Pointer & Cheadle [2022] FedCFamC2F 79
Case: [2022] FedCFamC2F 79
Decision Date

CaseChat Overview and Summary

This case concerned an Application for Review of interim parenting orders made by a Senior Judicial Registrar. The mother had sought orders that the child live with her and that she have sole parental responsibility for the child. The father opposed the mother's application and endorsed the orders made by the Senior Judicial Registrar. The mother filed an Application for Review of the orders made by the Senior Judicial Registrar. The court held that it was not in the best interests of the child to dismiss the Application for Review. The court held that it was desirable to moderate the respective risk of harm to the child posed by each parent. The court proposed to make orders that would require the mother to engage in specific treatment before she can proceed to spend more time with the child. The court also proposed to refer the matter to the National Assessment Team for consideration of transfer to Division 1 of the court.

Orders