Rivett & Lamore - [2023] FedCFamC2F 148

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rivett & Lamore [2023] FedCFamC2F 148

File number(s): PAC 5320 of 2020

Judgment of: JUDGE STREET

Date of judgment: 9 February 2023

Catchwords: FAMILY LAW – PARENTING – undefended hearing – unacceptable risk of family violence – orders made

Legislation:
Australian Passports Act 2005 (Cth)

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) pt VII; ss 4, 4AB, 43, 60, 60B, 60CA, 60CC, 60CG, 61, 61DA, 61DAA, 65Y, 67ZN, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Federal Circuit and Family Court of Australia (Family Rules) 2021 (Cth) rr 10.26, 10.27

Births, Deaths and Marriages Registration Act 1995 (NSW) ss 28(5), 29

Cases cited:
A v A (1998) FLC 92-800

A & Z [2006] FamCA 179

Cotton & Cotton (1983) FLC 91-330

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fitzwater & Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Goode & Goode [2006] FamCA 1346

Isles & Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Lanceley & Lanceley [1994] FamCA 94

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Masson v Parsons (2019) 266 CLR 554

McCall & Clark (2009) FLC 93-405

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Stott & Holgar [2017] FamCAFC 152

Zane & Allen [2008] FamCAFC 115

Academic Articles: Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249

Division: Division 2 Family Law

Number of paragraphs: 39

Date of hearing: 1 December 2022

Place: Parramatta

Counsel for the Applicant: Ms E Dalrymple

Solicitor for the Applicant: Mahony Family Lawyers

Solicitor for the Respondent: No Appearance

Counsel for the Independent Children’s Lawyer: Ms K Conte-Mills

Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates
ORDERS

PAC 5320 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RIVETT
Applicant

AND:
MR LAMORE
Respondent

order made by:

JUDGE STREET

DATE OF ORDER:

1 DecEMBER 2022

THE COURT ORDERS THAT:
1.The matter is to proceed by way of a default hearing.
2.Any earlier parenting orders are vacated.
3.The mother have sole parental responsibility for the children X, born in 2009 and Y, born in 2013.
4.The children live with the mother.
5.The children spend no time and have no communication with the father.
6.The child X Lamore, born in 2009, shall henceforth be known as X Rivett, and the child Y Lamore, born in 2013, shall henceforth be known as Y Rivett.
7.The mother be authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X, born in 2009 be now registered as X Rivett, and the child Y Lamore, born in 2013 be now registered as…

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 Rivett & Lamore

Details

AGLC: Rivett & Lamore [2023] FedCFamC2F 148
Case: [2023] FedCFamC2F 148
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a parenting case between Ms Rivett and Mr Lamore. The applicant sought sole parental responsibility for the two children born from the relationship, a change of name, and orders preventing the father from spending time or communicating with the children. The court had to determine whether the matter could proceed as an undefended hearing and if the applicant was entitled to the relief sought. The court also needed to decide if it was in the children's best interests to have sole parental responsibility granted to the mother, and if the children should have no contact with the father. The court found that the matter could proceed as an undefended hearing and that the applicant was entitled to the relief sought. The court determined that it was in the children's best interests for the mother to have sole parental responsibility and for the children to have no contact with the father due to the unacceptable risk of family violence. The court made orders granting sole parental responsibility to the mother, prohibiting contact between the children and the father, and authorizing a change of name for the children.

Orders