Schild & Schild (No 2) - [2023] FedCFamC2F 746

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Schild & Schild (No 2) [2023] FedCFamC2F 746

File number(s): PAC 4364 of 2020

Judgment of: JUDGE STREET

Date of judgment: 22 June 2023

Catchwords: FAMILY LAW – PARENTING –interim orders – mother in hospital – unable to attend hearing – final hearing date vacated

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2021 (Cth)

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

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

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

McCall & Clark (2009) FLC 93-405

Masson v Parsons (2019) 266 CLR 554

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Potter and Potter (2007) FLC 93-326

Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611

Stott & Holgar [2017] FamCAFC 152

Zane & Allen [2008] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 52

Date of hearing: 13 June 2023

Place: Sydney

Counsel for Applicant: Mr P Livingstone

Solicitor for Applicant: Matthew Dooley and Gibson

The Respondent: Litigant in Person (did not appear)

Independent Children’s Lawyer: Mark Macdiarmid Family Law Specialist
ORDERS

PAC 4364 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SCHILD

Applicant

AND:
MS SCHILD

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE STREET

DATE OF ORDER:

13 JUNE 2023

THE COURT ORDERS THAT:
1.The matter will proceed with the interim application filed by the applicant as an undefended hearing and the Court otherwise vacates the final hearing date of the parenting matter.
2.The Court reserved its written reasons for all of these orders.
3.The matter is stood over for directions commencing at 9:30AM on 5 April 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
4.That Orders 2, 3 and 4 in “Annexure A” of the orders made on 30 July 2021 be and hereby are discharged.
5.That the Father has sole parental responsibility for the children in relation to decision about their international travel for the purposes of holidays, and they take the children out of Australia on temporary travel without the consent of the respondent pursuant to s 65Yof the Family Law Act 1975 (Cth).
6.That the Father has sole parental responsibility for the children in relation to decisions about where they shall live with him from time to time provided that the Father shall…

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 Schild & Schild (No 2)

Details

AGLC: Schild & Schild (No 2) [2023] FedCFamC2F 746
Case: [2023] FedCFamC2F 746
Decision Date

CaseChat Overview and Summary

These are parenting proceedings in relation to two children, X, born in 2013, and Y, born in 2016. The matter was fixed for a final hearing to take place on 13 June 2023. The respondent mother, who has a serious mental illness, did not attend the hearing. The Court was unable to contact the respondent mother and she had conveyed earlier that she was unable to meaningfully participate in the hearing. The Court noted that the respondent mother had been hospitalised for many years due to her illness, which began in about 2018. The Court also noted that there was a history of verbal abuse and dysregulation, and the respondent mother had not seen the children for almost a year and had failed to take any steps under the orders made by the Court on 30 July 2021 to spend time with the children. The Court determined to proceed with the interim application filed by the applicant as an undefended hearing and vacated the final hearing date. The Court considered the legal principles set out in Part VII of the Family Law Act 1975 (Cth), including the presumption of equal shared parental responsibility and the best interests of the child. The Court also considered the additional matters set out in section 60CC(3) of the Act, such as the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court found that the interim parenting orders sought by the applicant in the application in a case were in the best interests of the children. The Court found that there was an unacceptable risk of psychological harm to the children through abuse, neglect or family violence, and that the children should live with the father. The Court also found that both communications with the children and time with the children should only progress through family therapy coordinated by the Independent Children's Lawyer. The Court made orders granting sole parental responsibility to the father for decisions about the children's international travel, where they shall live, and selection of schools. The Court also ordered the parties and children to attend a family consultant for the preparation of a family report and the respondent to engage with the Independent Children's Lawyer for reintroduction therapy. The Court noted that if there was a continuing failure by the respondent to engage with the family report writer and/or the Independent Children's Lawyer, the matter may proceed as an undefended hearing on 5 April 2024, in which final parenting orders might be made in accordance with the amending parenting application of the applicant.

Orders