SEYDL & HALLADAY (No.2) - [2019] FCCA 1625

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEYDL & HALLADAY (No.2)

[2019] FCCA 1625

Catchwords:
FAMILY LAW – Children – best interests – where mother and Independent Children’s Lawyer seek final orders for restraint on father having time or communicating with three year old child – where findings of family violence made – where father perpetrates coercive controlling family violence against mother – where child at unacceptable risk of harm in father’s care.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 61DA(1), 65D

Cases cited:

Bondelmonte v Bondelmonte [2017] HCA 8

Chappell & Chappell [2008] FamCAFC 143

Pegg & Pegg [2017] FCCA 402

U v U (2002) 211 CLR 238

Applicant:

MS SEYDL

Respondent:

MR HALLADAY

File Number:

BRC 10660 of 2016

Judgment of:

Judge Cassidy

Hearing dates:

22, 23, 24 May 2019

Date of Last Submission:

24 May 2019

Delivered at:

Brisbane

Delivered on:

12 July 2019

REPRESENTATION

Counsel for the Applicant:

Ms Downes

Solicitors for the Applicant:

Dodd Bedford & Associates

Counsel for the Respondent:

Mr Edwards

For the Respondent:

Self-represented

Counsel for the Independent Children's Lawyer:

Mr George

Solicitors for the Independent Children's Lawyer:

McGarvie Family Law Practice

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

That all previous Orders be discharged.
That the child [X] born on … 2016 (“the child”), live with the mother.
That the mother have sole parental responsibility for the long term care, welfare and development of the child.
That the father be restrained from communicating with, or spending time with the child.
That the father be restrained and an injunction issue restraining the father from doing the following:
(a)Communicating with the mother by any means;
(b)Approaching or remaining within one-hundred (100) metres of the mother’s home or workplace;
(c)Attending upon the child’s day care or school/s;
(d)Removing the child or causing another person to remove the child from the mother’s care, the child’s day care or school/s;
(e)Posting any information about the mother and/or the child, and/or the Court proceedings, on any social networking sites.
That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Seydl & Halladay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BUNDABERG

BRC 10660 of 2016

MS SEYDL

Applicant

And

MR HALLADAY

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter, I have been asked to decide the future parenting arrangements for a little girl, [X] (“[X]” or “the child”). [X] was born … 2016 and is now three years of age.
This judgment should be read in conjunction with the Reasons for Judgment delivered in this matter on 28 March 2019,…

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 SEYDL & HALLADAY (No.2)

Details

AGLC: Seydl and Halladay (No.2) [2019] FCCA 1625
Case: [2019] FCCA 1625
Decision Date: 12 July 2019

CaseChat Overview and Summary

In this matter before Judge Cassidy, the court considered final orders concerning a three-year-old child. The mother and the Independent Children’s Lawyer sought orders restraining the father from having any time or communication with the child. The proceedings were informed by findings of family violence, specifically coercive controlling family violence perpetrated by the father against the mother, which placed the child at an unacceptable risk of harm in the father's care.

The central legal issues before the court were whether to make final orders for the child to live with the mother, grant the mother sole parental responsibility, and impose significant restraints on the father's contact with the child and the mother. The court was required to determine the best interests of the child in light of the established family violence and the father's conduct, and to assess the risks posed by the father's behaviour.

Judge Cassidy's reasoning focused on the paramountcy of the child's best interests and the need to protect the child from harm. The court found that the father's history of coercive controlling family violence against the mother, including stalking and the covert use of a tracking device, demonstrated a pattern of behaviour that placed the child at unacceptable risk. The court considered the father's admissions to aspects of his offending behaviour and his explanation for pleading guilty, finding that his conduct warranted significant protective measures. The court also noted the mother's concerns regarding the father's alcohol use and the father's allegations of substance abuse by the mother, but ultimately prioritised the immediate safety of the child from the father's demonstrated behaviour.

Consequently, the court ordered that the child live with the mother and that the mother have sole parental responsibility for the child's long-term care, welfare, and development. The father was restrained from communicating with or spending time with the child. Furthermore, an injunction was issued restraining the father from communicating with the mother, approaching her home or workplace, attending the child's care or school, removing the child, or posting information about the mother or child on social media. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS:

That all previous Orders be discharged.

That the child [X] born on … 2016 (“the child”), live with the mother.

That the mother have sole parental responsibility for the long term care, welfare and development of the child.

That the father be restrained from communicating with, or spending time with the child.

That the father be restrained and an injunction issue restraining the father from doing the following:

(a) Communicating with the mother by any means;

(b) Approaching or remaining within one-hundred (100) metres of the mother’s home or workplace;

(d) Removing the child or causing another person to remove the child from the mother’s care, the child’s day care or school/s;

(e) Posting any information about the mother and/or the child, and/or the Court proceedings, on any social networking sites.

That the Independent Children’s Lawyer be discharged.

Background

Background to the litigation

The QPS ‘Court Brief’ (pp.63 to 64 of Exhibit 1), in relation to that charge notes:“Facts of the charge 1 of 1The defendant is known to the victim as he employed her (occupation omitted) for approximately two years up until 2012. Since that time the defendant and victim remained friends however the friendship ended in 2013.Between the 1st of March 2014 and the 4th of June 2014, the defendant has stalked the victim by attending locations where she lives, works and frequents on a near daily basis between those dates. The defendant during that time has driven past the victim’s residence between three and four times a week……On or around the 13th of May 2014, the defendant drove past the victim’s home when she was washing the car. He stopped and opened his window and said to her, “Hey, sexy”, at which point the victim has gone inside…In addition to following the victim frequently, on or around the 5th May 2014, the defendant purchased a Samsung mobile phone… The defendant activated GPS on this phone and installed an application on the phone called [application omitted]. The defendant then wrapped this phone in a plastic bag and taped it to a magnetised bracket…While the victim was inside the shops, the defendant walked to her car and attached the magnetised bracket containing the mobile phone to underneath the driver’s side of the car.Over the next three days, the defendant used his own mobile phone to access the [application omitted] and observe the victim’s location which was accurately mapped using GPS. The defendant used that information to attend locations the victim was at…The defendant’s behaviour has cause the victim to become extremely fearful. Over the months of this offence, the victim has observed the defendant’s behaviour escalate … The victim has become fearful of leaving her house or allowing her family to leave their house……[The defendant] later made full admissions to frequently going to the victim at various places and following her in his car, as well as twice attaching the mobile phone to the victim’s car and using it to access her location on multiple occasions. He could offer no reasonable excuse for any of the behaviour…” The father pleaded guilty to the Unlawful Stalking charge. I understand his evidence during cross-examination was that he only did so because he felt it would be too expensive to resist the charge. His evidence was that much of what is recorded in the QP9 did not, in fact, take place. Although the father admitted to what I consider to be the most serious aspect of that offending; that he did attach a mobile device to the woman’s vehicle. The father raises the risk of neglect and harm in the mother’s care arising from her use of alcohol and illicit drugs. If made out, such concerns would indeed be very troubling considering the vulnerabilities of such a young child in the primary care of functionally compromised caregiver. I note that the mother raises alcohol as being an issue for the father also.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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