Sellen & Treadway (No 2) - [2022] FedCFamC2F 1379

Federal Circuit and Family Court of Australia
(DIVISION 2)
Sellen & Treadway (No 2) [2022] FedCFamC2F 1379

File number: HBC 58 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 27 January 2022

Catchwords: FAMILY LAW – sentence on contravention – bond – parenting application – mother in Australia with children – father in New Zealand – weight to children’s wishes – frequency and mode of communication time with father disputed – evidence inadvertently led contrary to section 102NA(1)(iii) (order for personal protection of a party) – evidence admitted pursuant to section 138 of the Evidence Act.

Legislation:
Evidence Act 1995 (Cth) ss 138, 140

Family Law Act 1975 (Cth) ss 60CC, 102NA, 102NB.

Division: Division 2 Family Law

Number of paragraphs: 55

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:
(a)Harass, abuse or threaten each other nor permit third parties to do so;
(b)Denigrate each other to or in the presence of the children nor permit third parties to do so.

7.Within 14 days of the date of these Orders the Mother will provide the Father with the mobile telephone numbers for X and Y.
8.The Father may communicate with X and Y by text, videocall, phone call or other electronic means at reasonable hours and with reasonable frequency.
9.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.
10.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.
11.The Mother provide electronic copies of photographs of the children to the Father each quarter (each…

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.

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Details

Case: [2022] FedCFamC2F 1379
Decision Date

CaseChat Overview and Summary

The matter before the Court was a final parenting application, contravention applications, and penalty applications. The applicants were Ms Sellen and Mr Treadway, parents of two children, X and Y. The key issue before the Court was the final parenting order that would be in the best interest of the children. In determining the best interest of the children, the Court was required to take into account the primary considerations of section 60CC of the Family Law Act 1975 (Cth) and the additional considerations under section 60CC(3) of the Act. The Court considered the benefit of the children having a meaningful relationship with both parents, the need to protect the children from abuse, the views of the children, the nature of the relationship of the child with the parents, the capacity of the parents to provide for the needs of the child, the maturity, sex, lifestyle and background of the child, and any other fact or circumstance that the Court thinks is relevant. The Court found that the benefit to the children of having a meaningful relationship with their father outweighed the need to protect the children from abuse. The Court also found that the views of the children were significant, and the children had been stressed and troubled by the communication with their father and the conflict that that engendered between them. The Court found that the Mother has fulfilled her obligations to maintain the children in an exemplary manner in difficult circumstances, and the Father has, to the extent that it is within his ability, fulfilled his obligations to maintain the children. The Court found that the Father has sufficient emotional capacity to care for the children's needs in the circumstances where they will now have the ability to communicate with him or not, according to their wishes. The Court found that it was in the children's best interests that they have the responsibility to accept the calls or not and that the Mother will encourage and support the re-building of the relationship between the Father and the children. The Court also found that the Father yet has insufficient control of his emotions, when he is upset at the lack of his relationship with the children, that he can actually be involved in the children's sphere and space without interfering. The Court made orders that the Mother have sole parental responsibility for X and Y, 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 that 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. The Court made orders that 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. The Court also made orders that the Father be and is restrained from and is ordered to not harass, abuse or threaten the Mother nor permit third parties to do so, and that the parties must not denigrate each other to or in the presence of the children nor permit third parties to do so.

Orders