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Warren & Warren

Warren & Warren

Case [2022] FedCFamC2F 1556 17 November 2022

Parental Responsibility

Family Violence

Drug Use

Child Safety and Wellbeing

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Warren & Warren [2022] FedCFamC2F 1556

File number(s): CSC 544 of 2021

Judgment of: JUDGE COPE

Date of judgment: 17 November 2022

Catchwords: FAMILY LAW – parenting – one child aged 6 years – father poses an unacceptable risk to the child – mental health issues – family violence – failure to accept psychiatric diagnoses – repeated failures to successfully complete rehabilitation – failure to accept that conduct amounts to family violence – prescription and illegal drug abuse – presumption of equal shared parental responsibility does not apply – not in the best interest of the child – child live with mother– child spend supervised time with the father.

Legislation:
Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 60CG, 61DA(1), 64D(2), 65AA, 65Y

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Geisler & Geisler [2018] FCCA 3959

Hickson & Matthew [2022] FedCFamC1A 161

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

M v M [1988] 166 CLR 69; [1988] HCA 68

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

N v S (1996) FLC 92-655; [1995] FamCA 139

Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316

Nikolakis & Nikolakis [2010] FamCAFC 52

Rice v Asplund (1979) FLC 90-725;[1978] FamCA 84

Williamson & Parish [2022] FedCFamC2F 68

Division: Division 2 Family Law

Number of paragraphs: 264

Date of hearing: 25, 26, 27 & 28 July 2022

Place: City B

Counsel for the Applicant: Mr Williams of Counsel

Solicitor for the Applicant: Reaston Drummond Law

Counsel for the Respondent: Mrs Bassano of Counsel

Solicitor for the Respondent: MK Family Law

Counsel for the Independent Children's Lawyer: Mr Eylander of Counsel

Solicitor for the Independent Children's Lawyer: Collier Lawyers
ORDERS

CSC 544 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WARREN

Applicant

AND:
MR WARREN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE COPE

DATE OF ORDER:

17 NOVEMBER 2022

THE COURT ORDERS THAT:
1.All previous Orders are hereby discharged.

Parental Responsibility
2.The mother have sole parental responsibility for making decisions about major long-term issues for the child X born in 2016 (“the child”).
3.That in the exercise of her parental responsibility in accordance with Order 2:
(a)The mother will notify the father of her proposed decision (including reasons for the decision) in writing as soon as practicable prior to the decision being made);
(b)The father is to respond as soon as practicable to the mother’s proposal, and, if he wishes, indicate his view in relation to her proposal, including reasons;
(c)The mother is to give genuine consideration to the father’s response; and
(d)The mother is to notify the father in writing within 48 hours of the final decision being made.

4.That for the purposes of these Orders a major long-term issue shall include, but is not limited to, issues…

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 Warren & Warren

Details

AGLC: Warren & Warren [2022] FedCFamC2F 1556
Case: [2022] FedCFamC2F 1556
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia recently determined parenting arrangements in Warren & Warren [2022] FedCFamC2F 1556. The case involved a dispute between the parents of a six-year-old child, the child's father and mother, regarding the living arrangements and parental responsibility of the child. The court considered the best interests of the child in accordance with Part VII of the Family Law Act 1975 (Cth). The court found that the child was at an unacceptable risk of harm with the father due to his history of drug abuse, mental health issues, and family violence. Consequently, the court granted the mother sole parental responsibility for making decisions about major long-term issues for the child and ordered that the child live with the mother. The father was granted supervised time with the child at a professional supervision service, with the father being responsible for the costs of his supervised time. The court also made several other orders, including restraints on the father, communication between the child and the father, and passport and overseas travel provisions. The court's decision was based on the evidence presented, including expert reports and the credibility of the parties.

Orders