FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Treadwell & Hyams [2024] FedCFamC2F 1283
File number: MLC 6100 of 2022 Judgment of: JUDGE CHAMPION Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – Parenting – Where the children are aged 15 and 12 – Where Father has a history of family violence – Where the parties agree that the 15 year old child ought to live with the Mother and spend time with the Father in accordance with the child’s wishes – Where there was unacceptable risk of emotional harm for the 12 year old child spending time with the Father because of continuing family violence and other factors – Whether there are methods of risk amelioration available to avoid a no time orders as a last resort – Orders for no time made Legislation: Evidence Act 1995 (Cth) s. 140
Evidence Act 2008 (Vic) s. 141
Family Law Act 1975 (Cth) ss. 60CA, 60CC, 61DA, 65DAC, 67Z, 68R, 69ZW, 69ZT
Family Violence Protection Act 2008 (Vic) s. 74
Firearms Act 1996 (Vic) s. 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r. 6.05
Cases cited: A v A (1998) FLC 92-800
Amador & Amador [2009] FamCAFC 186
Baranski & Baranski [2012] FamCAFC 18
Bielen & Kozma [2022] FedCFamC1A 221
Britt & Britt (2017) FLC 93-764
Cole & Rudzik [2024] FedCFamC2F 14
Cotton & Cotton (1983) FLC 91-330
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Helbig & Rowe [2016] FamCAFC 117
Hendy & Penny [2018] FamCAFC 257
Holman v Holman (1964) 5 FLR 406
In the Marriage of JG and BG (1994) FLC 92-515
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-34
Judd & Pryor [2020] FamCA 78
Keane & Keane (2021) 62 Fam LR 190
Khalil v Tahir-Ahmadi (2012) 47 Fam LR 347 (FC)
Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 36
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
McCall & Clark (2009) FLC 93-405
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Rejfek v McElroy (1965) 112 CLR 517
Stott & Holgar [2017] FamCAFC 152
Summerby & Cadogen [2011] FamCAFC 205
Chisholm, Richard, ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010
Fogarty, John, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Division: Division 2 Family Law Number of paragraphs: 286 Date of last submissions: 17 July 2024 Date of hearing: 18–19 April, 3 May, 27–28 June, 17 July 2024 Place: Melbourne Counsel for the Applicant: Ms Damon Solicitor for the Applicant: V M Family Lawyers Counsel for the Respondent: Ms Papadinas, Mr Levine Solicitor for the Respondent: Bramham Lawyers, Maciel Pizzorno Lawyers Counsel for the Independent Children's Lawyer: Ms Glaister Solicitor…
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- [2024] FedCFamC2F 1283
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CaseChat Overview and Summary
In assessing the appropriate parenting orders, the court gave significant weight to the children's safety and welfare. Given the father's history of family violence, the court found that unsupervised time with Y would pose an unacceptable risk of emotional harm. The court considered various risk mitigation strategies but determined that they were insufficient to ensure Y's safety during time spent with the father. Consequently, the court concluded that a no time order was necessary to protect Y. For X, the court accepted the arrangement that they live with the mother and spend time with the father, subject to specific conditions to ensure their safety and well-being.
The court issued detailed parenting orders to address the safety and welfare of both children. It granted sole parental responsibility to the mother and ordered that both children live with her. X was allowed to spend no time with the father unless X themselves requested such time. Y was permitted to spend time with the father under strict conditions, including supervised visits, limited frequency, and prior written notice to the mother. The court also imposed restrictions on the father's communication with the children and their school, and required the parents to refrain from denigrating each other in the presence of the children. Physical discipline of the children was prohibited.
The final orders discharged all previous parenting arrangements, granted sole parental responsibility to the mother, and set out specific live with, spend time, communication, and safety arrangements for the children. The court also appointed an Independent Children's Lawyer to consult with the children and ensure their views were considered in the decision-making process.
Orders
Orders of the court
MLC 6100 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS TREADWELL
Applicant
AND:
MR HYAMS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. All previous parenting orders are discharged.
Sole parental responsibility
2. The Applicant Mother have sole parental responsibility for the children X born in 2008 (X) and Y born in 2011 (Y) (collectively the Children).
Live with arrangements
3. The Children live with the Mother.
4. The Mother will inform the Father in writing of any serious illness or injury suffered or sustained by either of the Children as soon as practicable and provide the Father with details of any decisions made or outcomes with respect to any treatment required or received by either of the Children.
Spend time and communication arrangements
5. X spend no time with the Father unless X seeks such time in writing and for the purpose of this order the Father keep the Mother informed of his current email address and contact telephone number and the Mother shall provide that information to X.
6. Y spend time and communicate with the Father as follows:
(a) on four occasions per year, on dates and times as agreed between the parties and failing agreement in March, July, October, December for a period of no longer than four hours;
(b) such time occur supervised by B Contact Service or other agreed supervisor (the supervisor) at the Father’s sole expense;
(c) the Father give the Mother notice of his intention to spend time with Y at least 2 weeks prior to the proposed time, in writing and in consultation with the supervisor; and
(d) such additional time as the Mother agrees in writing.
School
7. The Mother is to authorise the Children’s school to allow the release to the Father of the Children’s school reports to enable him to obtain information as to the academic progress of the Children.
8. The Father shall not attend at the Children's school or school events unless agreed by the Mother in writing.
Injunction against denigration
9. The parents are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of the Children and from allowing any other person to do so; and
(b) discussing these proceedings, or other proceedings in which the parents are involved, or the contents of any court related documents filed in these proceedings, with or in the presence or hearing of the Children and from allowing any other person to do so.
Physical Discipline
10. The Mother and Father must not discipline the Children by any physical means.
Independent Children’s Lawyer
11. The Mother is requested to make the Children available to consult with the Independent Children’s Lawyer as soon as practicable following the Judgment to enable him to explain the Orders made.
12. After the Independent Children’ Lawyer has consulted with the Children in accordance with Order 11 the appointment of the Independent Children's Lawyer is then discharged.
13. Pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
14. Under s. 114Q(2) of the Act, the Mother and the Father may disclose these orders to the principal or his or her delegate of any school the Children attend in relation to ensuring compliance with these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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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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