Stephens & Constable - [2022] FedCFamC2F 410

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stephens & Constable [2022] FedCFamC2F 410

File number(s): NCC 140 of 2015

Judgment of: JUDGE BETTS

Date of judgment: 4 April 2022

Catchwords: FAMILY LAW – Parenting – final orders – two children, aged 11 and 7 years – where the mother brought fresh proceedings in 2019 after the father breached previous final orders by physically disciplining the oldest child – where the court made interim orders in 2019 formally ceasing the father’s time with the children – where the mother seeks that the “no time” interim order be made as a final order – where the father seeks that time with the children recommence – where both parties have engaged in denigration and family violence – where an AVO was taken out for the protection of the mother and the oldest child – where the father has undertaken real steps to improve himself – where the court must decide whether the father poses an unacceptable risk of harm to the children – where the ICL contends that the father would not pose an unacceptable risk subject to various safeguards and injunctions in the orders – best interests of the children.

Legislation: Family Law Act 1975 (Cth), Pt VII

Cases cited:
A v A (1998) FLC 92-800

B and B (1993) FLC 92-357 (“B and B”)

Helbig & Rowe [2016] FamCAFC 117

Keane & Keane [2021] FamCAFC 1

M & M (1988) FLC 91-979

Marra and Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)

Russell & Close (Unreported Full Court, 25 June 1993)

Sedgley & Sedgley (1995) FLC 92-623

Division: Division 2 Family Law

Number of paragraphs: 230

Date of last submission/s: 18 August 2021

Date of hearing: 16, 17 and 18 August 2021

Place: Newcastle

Counsel for the Applicant: Mr Mooney

Solicitor for the Applicant: Ashby Family Solicitors

Counsel for the Respondent: Mr Willoughby

Solicitor for the Respondent: Joplin Lawyer

Counsel for the Independent Children’s Lawyer: Ms Ticehurst

Solicitor for the Independent Children’s Lawyer Legal Aid NSW Domestic Violence Unit

ORDERS

NCC 140 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS STEPHENS

Applicant

AND:
MR CONSTABLE

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:
Parental responsibility
1.The Mother is to have sole parental responsibility for the major long-term issues of the children X born 2010 and Y born 2014 (“the children”).
2.In the exercise of parental responsibility pursuant to order 1:
(a)The Mother is to notify the Father in writing within fourteen (14) days of making any major long-term decision/s for the children;
(b)The Mother is restrained from changing the children’s surname.

Living arrangements for the children
3.The children live with the Mother.

The children’s time with the Father
4.The children spend time with the Father as agreed between the parties in writing but failing agreement as follows:
In 2022:
(a)from the making of these orders, 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.

Continue reading Stephens & Constable

Details

AGLC: Stephens & Constable [2022] FedCFamC2F 410
Case: [2022] FedCFamC2F 410
Decision Date

CaseChat Overview and Summary

Stephens & Constable [2022] FedCFamC2F 410 involved a dispute between the parties in relation to the final orders to be made regarding their two children, X and Y. The mother brought fresh proceedings in 2019 after the father breached previous final orders by physically disciplining X. The father had struck X with a piece of cable causing him to sustain welts and bruises. The mother ceased the father's time with both children, thus leading to this second round of proceedings. The mother sought that the "no time" order be made on a final basis. The father sought orders which would enable resumption of those relationships. The Independent Children's Lawyer (ICL) contended that this was a "very close case" but that ultimately an order for time should be made - with safeguards. The court considered the evidence of the parties and the ICL and ultimately decided to make orders for the father to spend time with the children in a structured and careful way, subject to a number of safeguards and injunctions. The court held that though the father had perpetrated family violence, he had made real efforts to gain insight into his own behaviour and had developed much more empathy for the children and the mother. The court held that the boys would benefit from having a meaningful relationship with the father and the other members of his household, subject to the safeguards. The court held that the boys would suffer immensely if they were unable to maintain relationships with the father, Ms F and G and H. The court also considered the impact on the mother of making an order for time and held that while it may cause her some anxiety and distress, it was unlikely to cause a discernible adverse impact on her parenting capacity.

Orders