Sellen & Treadway - [2022] FedCFamC2F 1361

Federal Circuit and Family Court of Australia
(DIVISION 2)
Sellen & Treadway [2022] FedCFamC2F 1361

File number: HBC 58 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 27 January 2022

Catchwords: FAMILY LAW – ruling on competing contravention applications – one party in New Zealand – one party in Tasmania – mother denied alleged contraventions against her – reasonable excuse satisfied – father admitted multiple alleged contraventions against him – part heard hearing – proceedings delayed due to section 102NA oversight.

Legislation:
Family Law Act 1975 (Cth) ss 68B, 90NAC, 102NA and 114.

Federal Circuit Rules 2001 (Cth)

Cases cited:
Harrington & Yardley [2017] FCCA 617

TVT & TLM [2006] FMCAfam 20

Division: Division 2 Family Law

Number of paragraphs: 44

Date of hearing: 22 January 2021, 23-25 June 2021, 10 August 2021 and 27 January 2022.

Place: Melbourne

Counsel for the Applicant: Ms M A Ryan

Solicitor for the Applicant: PWB Lawyers

Solicitor for the Respondent: In person
ORDERS

HBC 58 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SELLEN

Applicant

AND:
MR TREADWAY

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

27 JANUARY 2022

THE COURT ORDERS THAT:
Final Parenting Orders:
1.All extant parenting orders are discharged.
2.Ms Sellen (‘the Mother’) have sole parental responsibility for X born in 2005 (‘X’) and Y born in 2006 (‘Y’) (collectively ‘the children’).
3.The children live with the Mother.
4.The children spend time with Mr Treadway (‘the Father’) as agreed in writing, email or text message, between the parties and taking into account the views expressed by X and Y, and in the event of a dispute as to what was agreed, the last communication from the Mother (in writing, email or text message) stands as the agreement.
5.Both parties not be under the influence of any illicit substance or alcohol to the extent of intoxication when the children are in their care.
6.The parties must not:
7.Harass, abuse or threaten each other nor permit third parties to do so;
8.Denigrate each other to or in the presence of the children nor permit third parties to do so.
9.Within 14 days of the date of these Orders the Mother will provide the Father with the mobile telephone numbers for X and Y.
10.The Father may communicate with X and Y by text, videocall, phone call or other electronic means at reasonable hours and with reasonable frequency.
11.The Mother do all acts and things to encourage X and Y to communicate with the Father, including their initiating communication on the Father’s birthday and on Father’s Day or if the Father has initiated communication on either child’s birthday.
12.The Father be and is restrained from and is ordered to not criticise, abuse or belittle X or Y, particularly, but not limited to occasions either child declines to communicate with the Father at all or at the time he proposes.
13.The Mother provide electronic copies of photographs of the children to the Father each quarter (each quarter…

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 Sellen & Treadway

Details

AGLC: Sellen & Treadway [2022] FedCFamC2F 1361
Case: [2022] FedCFamC2F 1361
Decision Date

CaseChat Overview and Summary

The matter before the court concerned the parents' three children, Ms B, X and Y. Ms B is now 18 years old and not the subject of the current proceedings. The children's mother, Ms Sellen, lives in Tasmania and the children's father, Mr Treadway, lives in New Zealand. Final Orders had been previously made in the matter on 26 February 2015 and those orders provided that the Mother will have sole parental responsibility for the children, that the children live with the Mother and that the children spend time with the Father as agreed between the parties. It was further ordered that the parties not be under the influence of any illicit substance or alcohol when the children are in their care and then there was further order number 5: "That the parties must not: (a)harass, abuse or threaten each other or permit third parties to do so; and (b)denigrate each other to or in the presence of the children nor permit third parties to do so". Those Final Orders did not satisfactorily quell the controversies between the parents, and on 28 November 2018 further orders were made that added to, or refined, or defined those previous orders. The court was required to determine whether the Mother had contravened certain parenting orders and whether the Father had contravened certain parenting orders. The court also needed to determine whether the Mother's contravention application against the Father was proven and whether the Father's contravention application against the Mother was proven. The court found that the Father had breached certain orders on multiple occasions, and that the Mother had not breached any orders. The court found that the Mother's contravention application against the Father was not proven and dismissed the Father's contravention application against the Mother. The court then made orders in relation to the final parenting orders, including that the Mother have sole parental responsibility for the children, that the children live with the Mother, that the children spend time with the Father as agreed in writing, email or text message between the parties and taking into account the views expressed by X and Y, and in the event of a dispute as to what was agreed, the last communication from the Mother (in writing, email or text message) stands as the agreement. The court also made orders in relation to communication between the parties and the children, and in relation to the provision of photographs and school reports.

Orders