Rogers & Mowson (No 2) - [2022] FedCFamC1F 1058

Federal Circuit and Family Court of Australia
(DIVISION 1)
Rogers & Mowson (No 2) [2022] FedCFamC1F 1058

File number(s): NCC 554 of 2021

Judgment of: SMITH J

Date of judgment: 13 December 2022

Catchwords: FAMILY LAW – interim application – oral reasons – one child aged 14 – where the father is medically retired based on mental health status – where the father is charged with assaulting a mentally ill person – where the father denies any wrongdoing and says the charges result from a conspiracy – where the police case is based on footage and witnesses – where the criminal trial is outstanding - where the father has a history of alcohol abuse – where the single expert psychiatrist holds concerns about the father’s ability to regulate his behaviour and recommends supervised time and other safeguards around alcohol use – where the father’s treating psychiatrist largely agrees with the single expert psychiatrist’s recommendations –where the mother seeks no time or in the alternative professionally supervised time – where the father seeks unsupervised time or in the alternative supervision by the paternal grandparents – where the ICL seeks supervision by the paternal grandparents and the other recommended safeguards - Ordered professionally supervised time with breathalyser testing and CDT testing.

Legislation: Family Law Act1975 (Cth) Part 7 Division 5, ss 60CA, 60CC, 64B, 65AA, 65D, 65DAA, 69ZL.

Cases cited:
Banks & Banks [2015] FamCAFC 36

Rogers & Mowson [2022] FedCFAMC1F 507

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode [2006] FamCA 1346

In the Marriage of B & B (1993) 16 Fam LR 353

Isles & Nelissen [2022] FedCFamC1A 97

M & M (1988) 166 CLR 69

Marvel & Marvel(No2) [2010] FamCAFC 101

Mazorski & Albright [2007] FamCA 520

SS & AH [2010] FamCAFC 13

Stott & Holgar & Anor [2017] FamCAFC 152

Division: Division 1 First Instance

Number of paragraphs: 103

Date of hearing: 12 December 2022

Place: Newcastle by Microsoft Teams

Solicitor for the Applicant: Toronto Legal

Solicitor for the Respondent: Crowther Sim Lawyers

Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer
ORDERS

NCC554 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ROGERS

Applicant

AND:
MS MOWSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SMITH J

DATE OF ORDER:

13 DECEMBER 2022

THE COURT ORDERS THAT:
1.The matter remains listed for mention on 4 April 2023 at 2:15 p.m., by way of Microsoft Teams.
2.Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted for an earlier mention date or to have the matter administratively adjourned.
3.Order 3 of the Orders dated 30 January 2019 is suspended.
4.X born 2008 (‘the child’) spend time with MR ROGERS born 1985 (‘the father’) only on the following supervised basis:
(a)Each alternate weekend on a day and time as directed by the agreed supervision service for a period not to exceed four (4) hours.
(b)Time is to start…

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 Rogers & Mowson (No 2)

Details

AGLC: Rogers & Mowson (No 2) [2022] FedCFamC1F 1058
Case: [2022] FedCFamC1F 1058
Decision Date

CaseChat Overview and Summary

This case involves an interim application for parenting orders concerning a 14-year-old child, X, who is the daughter of the parties, Mr Rogers (the father) and Ms Mowson (the mother). The father has been medically retired due to serious mental health issues arising from his employment. The mother is an educator who works about two to three days per week. The matter was initially listed for final hearing but was vacated due to late disclosure of the father's mental health concerns and associated issues of alcohol abuse, anger, and impulse control. The father has been charged with assaulting a mentally ill person, and he denies any wrongdoing, claiming that the charges result from a conspiracy. The police case is based on footage and witnesses.

The court's primary consideration is X's best interests, focusing on protecting her from physical or psychological harm and ensuring she has a meaningful relationship with both parents. The court must take into account the serious allegations made against the father and weigh them in its assessment. While the court cannot make any findings of fact, it must consider the risk of harm to the child when assessing the case.

The court found that there is a real possibility of risk of the father losing control with X in his care, which constitutes an unacceptable risk. The court accepted the recommendations of the single expert psychiatrist and the father's psychiatrist, who both agree that supervision is necessary. The court found that it would be inappropriate for the paternal grandparents to supervise the father's time with X due to the nature of the allegations. Instead, the court ordered that X will spend supervised time with the father, with such supervision to be provided by a professional supervision service at his cost. The court also ordered that the father must undertake breathalyser testing immediately prior to supervised time and CDT testing within 14 days of these orders and thereafter as requested by the Independent Children's Lawyer.

The court suspended order 3 of the orders of 30 January 2019 while supervision is taking place but decided not to suspend order 1, and the parties will continue to share equal shared parental responsibility for the moment. The court also ordered that the father is not to give any medication to the child not prescribed to the child by her doctor.

Orders