Rusak & Manning - [2023] FedCFamC2F 11

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rusak & Manning [2023] FedCFamC2F 11

File number: PAC 3456 of 2020

Judgment of: JUDGE STREET

Date of judgment: 9 February 2023

Catchwords: FAMILY LAW – FINAL PARENTING ORDER– undefended hearing - unacceptable risk – no time

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) pt VII; ss 4, 4AB, 43, 60CA, 60CC, 60CC(2A), 61DA, 65D, 65DAA, 69ZM

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

Cases cited:
A v A (1998) FLC 92-800 at 84,996

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

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: 45

Date of hearing: 13 December 2022

Place: Parramatta

Solicitor for the Applicant: No Appearance

Solicitor for the Respondent: Mr Voros, Voros Lawyers

Solicitor for the Independent Children’s Lawyer: Ms Hernandez, Claremont Legal
ORDERS

PAC 3456 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RUSAK

Applicant

AND:
MS MANNING

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE STREET

DATE OF ORDER:

13 December 2022

THE COURT ORDERS THAT:
1.The matter proceed as an undefended hearing.
2.The respondent mother have sole parental responsibility in relation to the child X born 2014 (the Child).
3.The Child live with the respondent mother.
4.The Child spend no time with the applicant father.
5.All orders sought in the applicant father’s application, dated 13 July 2020, are dismissed.
6.The ICL in this matter is discharged.
7.The Court reserves its reasons for the above 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to…

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 Rusak & Manning

Details

AGLC: Rusak & Manning [2023] FedCFamC2F 11
Case: [2023] FedCFamC2F 11
Decision Date

CaseChat Overview and Summary

This case involved proceedings under the Family Law Act 1975 (Cth) ("the Act") where the applicant, Mr Rusak, sought parenting orders in relation to his child, X, born in 2014. The respondent, Ms Manning, sought sole parental responsibility for the child and that the child spend no time with the applicant. The Independent Children’s Lawyer (ICL) also filed a case summary and proposed orders. The matter proceeded as an undefended hearing before Judge Street who made orders granting sole parental responsibility to the respondent and that the child spend no time with the applicant. The Court also dismissed all other orders sought by the applicant. The Court reserved its reasons for the orders.

The Court found that the presumption of equal shared parental responsibility did not apply as there were reasonable grounds to believe that the applicant had engaged in family violence by way of neglect and failure to engage with the child. The Court also found that there was an unacceptable risk of serious emotional harm to the child if the applicant were to have parental responsibility and that there was a real risk of physical and emotional harm to the child if unsupervised time were permitted. The Court was not persuaded that this was an appropriate matter in which to make any order other than a no time order.

The Court considered the evidence presented, including the affidavit evidence of the respondent, the family report, and the relevant statutory provisions of the Act. The Court found that the applicant had failed to engage in the proceedings and had neglected the child by failing to attend scheduled visits and failing to comply with Court orders in relation to drug and alcohol testing. The Court also found that the applicant had made threatening and abusive text messages to the respondent. The Court concluded that the best interests of the child were met by granting sole parental responsibility to the respondent and making a no time order in relation to the applicant. The Court also dismissed all other orders sought by the applicant.

The Court made orders granting sole parental responsibility to the respondent, that the child live with the respondent, that the child spend no time with the applicant, and that all other orders sought by the applicant be dismissed. The Court also discharged the ICL. The Court reserved its reasons for the orders.

Orders