Rannells & Whitaker - [2025] FedCFamC1F 305

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rannells & Whitaker [2025] FedCFamC1F 305

File number(s): NCC 4067 of 2021

Judgment of: SMITH J

Date of judgment: 23 April 2025

Catchwords: FAMILY LAW – CHILDREN – Where parties proposed a minute at the commencement of trial – Independent Children’s Lawyer opposed the minute – where trial proceeded in circumstances where the court was not satisfied the proposal was in the best interest of the child – where parties and the Independent Children’s Lawyer agreed for the mother to have sole parental and decision making authority and for the child to live with the mother – where evidence demonstrated that the father had engaged in a pattern of persistent violent and coercive and controlling behaviour with partners, including the mother – where evidence further showed that the father’s mental health was volatile and his mental health condition presently unmedicated – where contrary to her evidence at the conclusion of the trial the mother still sought that the child spend time with the father, opposed by the Independent Children’s Lawyer – father an unacceptable risk of harm – supervision will not ameliorate those risks - finding that it is in the best interests of the child to spend no time and have no communication with the father - finding that the mother lacked protective capacity - further referral to Department of Communities and Justice to consider removal of child

Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60CA, 60CC, 65AA, 68B, 91B

Cases cited:
Betross & Betross [2017] FamCAFC 90

Keighley & Keighley [2023] FedCFamC1A 146

Keighley & Keighley (No 2) [2023] FedCFamC1F 42

Pointer & Cheadle (No 2) [2023] FedCFamC1F 602

Division: Division 1 First Instance

Number of paragraphs: 203

Date of hearing: 14-16 April 2025

Place: Newcastle

Counsel for the Applicant: Mr Spicer

Solicitor for the Applicant: Sydney Triumph Lawyers

Counsel for the Respondent: Mr Hartwell

Solicitor for the Respondent: Scb Legal Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Murray

Solicitor for the Independent Children's Lawyer: Coast Law
ORDERS

NCC 4067 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS RANNELLS

Applicant

AND:
MR WHITAKER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

23 APRIL 2025

THE COURT ORDERS BY CONSENT THAT:
1.All extant interim applications are dismissed.
2.MS RANNELLS (“the mother”) shall have parental responsibility for X (“the child”) and sole decision-making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.
3.The child live with the mother.

THE COURT FURTHER ORDERS THAT:
4.The child shall spend no time with MR WHITAKER (“the father”).
5.The child shall have no communication with the father.
6.Pursuant to s 68B of the Family Law Act 1975, and for the personal protection of the mother and the child, the father is injuncted from:
(a)Attempting to contact 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.

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Details

Case: [2025] FedCFamC1F 305
Decision Date: 23 April 2025

CaseChat Overview and Summary

In the matter of Ms Rannells and Mr Whitaker, the Federal Circuit and Family Court of Australia was tasked with determining the parenting arrangements for the child X. The primary legal issue before the court was whether the child should have any contact with the father, Mr Whitaker, given the extensive history of family violence and the father's unmedicated mental health condition. The court needed to weigh the evidence of the father's persistent violent and coercive behaviour against the mother, as well as his unmedicated mental health issues, against the mother's desire for the child to maintain a relationship with the father.

The court considered the evidence presented, including the mother's detailed account of the father's violent and controlling behaviour, which was corroborated by police observations, admissions by the father, and his criminal history. The court also noted the father's own admissions regarding his mental health condition, his history of breaching apprehended violence orders, and his unmedicated status at the time of the hearing. Despite the mother's request for the child to have contact with the father, the Independent Children's Lawyer opposed such contact due to the father's unacceptable risk of harm to the child. The court concluded that the father's history of violence and his unmedicated mental health condition posed significant risks to the child, and that these risks could not be mitigated by supervision. Therefore, the court found that it was in the best interests of the child to have no contact with the father.

The court also found that the mother lacked protective capacity, necessitating a referral to the Department of Communities and Justice to consider the removal of the child from the mother's care. The court made orders granting the mother sole parental responsibility and decision-making authority for the child, prohibiting the father from contacting the child or the mother, and requiring the mother to apply for a passport for the child. The court provided copies of the judgment and orders to the New South Wales Police Force and the Department of Communities and Justice, and noted that police officers could arrest the father without a warrant if they believed he had breached the injunction.

Orders

Orders of the court

NCC 4067 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RANNELLS

Applicant

AND:

MR WHITAKER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

23 APRIL 2025

THE COURT ORDERS BY CONSENT THAT:

1. All extant interim applications are dismissed.

2. MS RANNELLS (“the mother”) shall have parental responsibility for X (“the child”) and sole decision-making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.

3. The child live with the mother.

THE COURT FURTHER ORDERS THAT:

4. The child shall spend no time with MR WHITAKER (“the father”).

5. The child shall have no communication with the father.

6. Pursuant to s 68B of the Family Law Act 1975, and for the personal protection of the mother and the child, the father is injuncted from:

(a) Attempting to contact the child, the mother or any members of the mother's family by any means, including through any third party.

(b) Harassing, stalking or intimidating the child, mother or any members of the mother's family, including but not limited to via the internet or social media.

(c) Approaching, entering or coming within 250 metres of any place where the mother or child may reside from time to time.

(d) Approaching, entering or coming within 250 metres of any place of employment where the mother may work from time to time.

(e) Approaching, entering or coming within 250 metres of any school or before or after school service, day care or vacation centres which the child may attend or at which the child may be enrolled.

(f) Approaching, entering or coming within 250 metres of any place where the child may be engaged in any school related, extra-curricular or sporting activity.

7. The mother (Ms Rannells born 1984) have sole parental responsibility and sole decision making authority in respect of the child (X born 2019) in respect of any application for a passport and in respect of any travel outside the Commonwealth of Australia.

8. The mother be authorised to apply and forthwith obtain an Australian passport for the child so as to enable her to travel in and out of the Commonwealth of Australia.

9. The consent of the father (Mr Whitaker born 1983) to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.

10. The child be permitted to depart the Commonwealth of Australia with the mother or at the mother’s direction.

11. The mother is required to, and the Independent Children’s Lawyer may, provide a copy of these Orders to any school or educational or similar facility which the child attends from time to time so they are on notice of the s 68B injunction.

12. The Court provide a copy of these Orders to the New South Wales Police Force.

13. The Court provide a copy of the Judgment and Orders to the Department of Communities and Justice New South Wales (“DCJ”), with particular reference to the heading “Notification to DCJ”, together with a copy of the Family Report dated 8 September 2023, and DCJ may be given any other filed material which DCJ may request.

14. The Independent Children’s Lawyer, or any party, have liberty to approach the Court in Chambers within 28 days to list the proceedings for further hearing in relation to any costs application.

15. The Independent Children’s Lawyer otherwise be discharged 42 days from the date of these orders in the absence of any Appeal.

THE COURT NOTES THAT:

A. Section 68C of the Family Law Act 1975 (Cth), provides that if a police officer believes, on reasonable grounds, that the father has breached the injunction as set out in Order 6 above by causing or threating to cause bodily harm to the protected person or by harassing, molesting or stalking the protected person, such Police Officer may arrest the father without warrant.

B. Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The mother, father, and expert were required for cross-examination and attended, and were cross-examined.BACKGROUNDRELATIONSHIP AND FATHER'S FAMILY VIOLENCE The parties commenced a relationship after they met in late 2003, shortly after the father was released from a period in custody for drug supply. On the mother's evidence[7] the father perpetrated family violence across their entire relationship, and that family violence has continued post-separation. This included physical violence, included choking, ripping hair from her scalp, throwing her to the ground whilst pregnant with C, being glassed, having objects thrown at her, including at her head and face, verbal insults and threats to harm her, and emotional abuse and intimidation, name-calling, stalking, telecommunication abuse and intimidation. [7] Family Report dated 8 September 2023, paragraphs 40-43. The mother also alleges long-term coercive control, including the father coercing her to remain in the relationship through regular threats of suicide if she left, stating that they were more likely to have the older children returned if they stayed together, and threatening her family, assaulting and intimidating her parents and siblings, and causing her to remain through fear of being hurt. The evidence in support of the mother's allegations of family violence is overwhelming, including not only contemporaneous complaints, but also the police’s own observations, the father's various admissions during treatment and assessments, his pleas of guilt, and his convictions.[8] [8] See e.g. Exhibit ICL 2; Exhibit ICL 3; Exhibit ICL 7; Family Report dated 8 September 2023, paragraph 109. The mother's evidence is also that the father has breached AVO’s and the father's criminal history makes it clear that he has been convicted of breaching AVO’s.FATHER'S MENTAL HEALTH HISTORY The father's evidence, in his affidavit at [50] to [60], was that in 2011, whilst incarcerated, he was diagnosed with a mental health condition by Dr N, a psychiatrist acting as an expert in his criminal case. The father said he was treated by mental health professionals provided by Corrective Services during his incarceration, and they diagnosed the mental health condition and prescribed Seroquel which is prescribed for multiple conditions, and Avanza which is prescribed for depression. Upon his release from prison in 2011, he said he commenced seeing Dr N monthly and eventually every few months, and he continued to be prescribed the same medications as at the gaol, that is to say Seroquel and Avanza. The father does not say when he ceased seeing Dr N. He says he commenced seeing Dr O, a psychiatrist. There is no evidence from Dr N or Dr O, or any other mental health practitioner, in the father's case. The parties separated in November 2018 after an incident in which the father threatened suicide and tried to kill himself at the maternal grandfather's house, as a result of which he spent some time in a mental health unit. The hospital records state that the father was brought in by a friend. The history was that the father:[9]…attempted to [kill] himself […] at his partner's father's house [in Region P]. It was reported that [Mr Whitaker’s] father-in-law had to [intervene] and that he had lost consciousness. [Mr Whitaker’s] ex-partner, [Ms Rannells], reported that [Mr Whitaker] had sent her a photo […] before he attempted to [kill] himself…[9] Exhibit ICL 4.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The parties remained in contact and intimate, and reunited after the mother became pregnant with the child. I note that C self-placed with the parents shortly following the child's birth.FINAL SEPARATION The parties finally separated in about October 2021. The mother says this was in the context of long-term ongoing family violence, and also after the father specifically: pushed her to the ground; threw her clothes on the footpath; and sent her a video stating he had killed her dogs.Push to the Ground The father admits pushing the mother to the ground. In the Family Report interviews the father told the expert:[13]47.… “I pushed her on her arse. And she thought she broke her arm (pause). But she smashed the window of [C’s vehicle], and nearly smashed my [vehicle].”(Emphasis in original) [13] Family Report dated 8 September 2023, paragraph 47. In oral evidence the father accepted he pushed the mother to the ground, but again sought to justify his conduct on the same basis that it was a reasonable response to her actions.Video of blood on dogs The mother says that the father directed C to place his own blood on and around her dogs in an attempt to convince the mother that the dogs were dead and cause emotional distress. The father was asked about this by the expert:[14]54.The father agreed that he directed [C] to cut his own hand and place blood over, and around, the mothers dogs to “set up a crime scene as a practical joke”, to convince the mother her dogs were dead. The father said he had no other option, as the mother refused to collect the dogs from his home. The father denied that this caused [C] any emotional harm, or that he was encouraging [C] to be complicit in his family violence perpetrating against the mother. The father said following this he dropped the dogs, and the mother’s personal items at a local vet and left. [14] Family Report dated 8 September 2023, paragraph 54. Despite telling the expert that he had directed C to cut his own hand, in oral evidence before me the father denied that and said that C had just happened to cut it while working but did not otherwise deny the incident had occurred. I find that the father did tell the expert that he directed C to cut his hand, as she recorded, and prefer that as likely the more honest answer, which the father tried to deny in oral evidence before me by suggesting the cut was already there to minimise the conduct. In oral evidence the father also defended his conduct, suggesting it was a joke. I reject that evidence. I find this was an act of family violence intended to cause significant emotional harm and distress to the mother, by suggesting her dogs had been killed or badly injured. The father also suggested in oral evidence that the dogs were already seriously injured because they were vicious and harming each other. However, if that was the case, and the dogs were already injured, there would have been no need to have C smear his blood on the dogs. I reject that evidence as a dishonest attempt to minimise and evade responsibility for his violent behaviour. I also note that he involved C in this behaviour and modelled violent and manipulative behaviour towards the mother as appropriate, and in his evidence, funny behaviour.Belongings on the ground

File number(s):	NCC 4067 of 2021
Judgment of:	SMITH J
Date of judgment:	23 April 2025
Catchwords:	FAMILY LAW – CHILDREN – Where parties proposed a minute at the commencement of trial – Independent Children’s Lawyer opposed the minute – where trial proceeded in circumstances where the court was not satisfied the proposal was in the best interest of the child – where parties and the Independent Children’s Lawyer agreed for the mother to have sole parental and decision making authority and for the child to live with the mother – where evidence demonstrated that the father had engaged in a pattern of persistent violent and coercive and controlling behaviour with partners, including the mother – where evidence further showed that the father’s mental health was volatile and his mental health condition presently unmedicated – where contrary to her evidence at the conclusion of the trial the mother still sought that the child spend time with the father, opposed by the Independent Children’s Lawyer – father an unacceptable risk of harm – supervision will not ameliorate those risks - finding that it is in the best interests of the child to spend no time and have no communication with the father - finding that the mother lacked protective capacity - further referral to Department of Communities and Justice to consider removal of child
Legislation:	Family Law Act 1975 (Cth), Pt VII, ss 60CA, 60CC, 65AA, 68B, 91B
Cases cited:	Betross & Betross [2017] FamCAFC 90 Keighley & Keighley [2023] FedCFamC1A 146 Keighley & Keighley (No 2) [2023] FedCFamC1F 42 Pointer & Cheadle (No 2) [2023] FedCFamC1F 602
Division:	Division 1 First Instance
Number of paragraphs:	203
Date of hearing:	14-16 April 2025
Place:	Newcastle
Counsel for the Applicant:	Mr Spicer
Solicitor for the Applicant:	Sydney Triumph Lawyers
Counsel for the Respondent:	Mr Hartwell
Solicitor for the Respondent:	Scb Legal Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Murray
Solicitor for the Independent Children's Lawyer:	Coast Law

NCC 4067 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS RANNELLS Applicant
AND:	MR WHITAKER Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	23 APRIL 2025