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…
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- Rogers & Mowson (No 2) [2022] FedCFamC1F 1058
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- [2022] FedCFamC1F 1058
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CaseChat Overview and Summary
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.
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