Watton & Watton - [2022] FedCFamC2F 1095

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Watton & Watton [2022] FedCFamC2F 1095

File number(s): MLC 6182 of 2020

Judgment of: JUDGE BENDER

Date of judgment: 18 August 2022

Catchwords:
FAMILY LAW – PARENTING – what time, if any, the Father spends with the children – what time, if any, the Paternal Grandparents spend with the children – where the Mother alleges family violence perpetrated by the Father during the relationship – the Mother argues the Father poses an unacceptable risk to the children – where the Father has diagnosed mental health issues and a history of illicit substance abuse which the Father fails to acknowledge or undertake treatment for – the Mother argues the Paternal Grandparents are unable to prevent the Father attending their time with the children – where the Paternal Grandparents do not accept the Father is a risk to the children.

FAMILY LAW – HELD – the Mother have sole parental responsibility – the children live with the Mother – there be no time or communication with the Father – the Father be permitted to send the children gifts and cards on special occasions – there be no face to face time with the Paternal Grandparents – there be weekly FaceTime communication with the Paternal Grandparents – the Paternal Grandparents be permitted to send the children gifts and cards on special occasions.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 61DA, 65DAA

Cases cited: Goode & Goode [2006] FamCA 1346

Division: Division 2 Family Law

Number of paragraphs: 269

Date of hearing: 26 April 2022, 27 April 2022, 28 April 2022, 5 May 2022, 6 May 2022

Place: Melbourne

Counsel for Applicant: Ms O’Connell

Counsel for First Respondent: Mr Cenacchi

Counsel for Second Respondent: Mr Byrne

Counsel for Independent Children’s Lawyer: Ms Elleray
ORDERS

MLC 6182 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WATTON

Applicant

AND:
MR WATTON

First Respondent

MR B WATTON & MS C WATTON
Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

18 AUGUST 2022

THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the children of the relationship X born in 2011 and Y born in 2016.
2.X and Y live with the Mother.
3.There be no face to face contact or direct communication between the Father and X and Y.
4.The Father may forward to X and Y, via a contact post office address provided to him by the Mother for that purpose, cards, gifts and letters on their birthdays, at Easter and Christmas.
5.The Mother be at liberty to examine any gifts and read any cards and letters from the Father prior to providing them to X and Y to ensure they are, in her judgment, appropriate and, if so, she shall provide same to X and Y.
6.The Mother shall notify the Father of any serious accident or illness suffered by X and Y or either of them as soon as…

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 Watton & Watton

Details

AGLC: Watton & Watton [2022] FedCFamC2F 1095
Case: [2022] FedCFamC2F 1095
Decision Date: 18 August 2022

CaseChat Overview and Summary

This case concerned a dispute over parenting arrangements for two children, X and Y, born in 2011 and 2016, respectively. Ms Watton, the mother, sought sole parental responsibility for the children and argued that the father, Mr Watton, posed an unacceptable risk to them due to his history of family violence, mental health issues, and substance abuse. Ms Watton also contended that the paternal grandparents, Mr and Ms B Watton, could not prevent Mr Watton from attending their time with the children. The paternal grandparents disputed the father's risk to the children but did not oppose the arrangements proposed by the mother.

The primary legal issues before the court were whether the mother should have sole parental responsibility for the children, whether there should be any contact between the children and their father or paternal grandparents, and if so, what form that contact should take. The court had to weigh the mother's concerns about the father's mental health, substance abuse, and history of family violence against the paternal grandparents' belief that the father was not a risk to the children.

The court found that the mother should have sole parental responsibility for the children and that there should be no face-to-face contact or direct communication between the children and their father due to the father's mental health issues, substance abuse, and history of family violence. The court also found that the paternal grandparents could not prevent the father from attending his time with the children and that they were unable to provide a safe environment for the children. Therefore, there should be no face-to-face contact between the children and their paternal grandparents. However, the court allowed for weekly FaceTime communication between the children and their paternal grandparents and permitted the paternal grandparents to send the children gifts and cards on special occasions, subject to the mother's approval.

The court made orders granting the mother sole parental responsibility for the children, prohibiting face-to-face contact or direct communication between the children and their father, allowing the father to send the children gifts and cards on special occasions, prohibiting face-to-face contact between the children and their paternal grandparents, allowing for weekly FaceTime communication between the children and their paternal grandparents, and permitting the paternal grandparents to send the children gifts and cards on special occasions, subject to the mother's approval. The court also made orders restraining the mother and father, their servants and agents, from discussing the proceedings with the children, denigrating the other parent or member of their family to the children, or exposing the children to any form of violence, threats, or intimidation.

Orders

Orders of the court

MLC 6182 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS WATTON

Applicant

AND:

MR WATTON

First Respondent

MR B WATTON & MS C WATTON

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

18 AUGUST 2022

THE COURT ORDERS THAT:

1. The Mother have sole parental responsibility for the children of the relationship X born in 2011 and Y born in 2016.

2. X and Y live with the Mother.

3. There be no face to face contact or direct communication between the Father and X and Y.

4. The Father may forward to X and Y, via a contact post office address provided to him by the Mother for that purpose, cards, gifts and letters on their birthdays, at Easter and Christmas.

5. The Mother be at liberty to examine any gifts and read any cards and letters from the Father prior to providing them to X and Y to ensure they are, in her judgment, appropriate and, if so, she shall provide same to X and Y.

6. The Mother shall notify the Father of any serious accident or illness suffered by X and Y or either of them as soon as practicable after such illness or injury via a contact address he provides to her for that purpose.

7. The Mother and Father, their servants and agents, be restrained from:

(a) discussing these proceedings with X and Y or either of them, or within their hearing;

(b) denigrating the other parent or member of their family to X and Y or either of them, or within their hearing; and

8. The Mother be at liberty to provide a copy of these orders to X and Y’s kindergarten/school and to any of X and Y’s treating health professionals.

9. The Mother shall do all things necessary to enable X and Y to communicate with the Paternal Grandparents by Skype or such other agreed technology on such days and at such times as are agreed between the parties, and failing agreement as follows:

(a) for between 15 – 30 minutes, each Tuesday between 7:00pm and 7:30pm;

(b) on each of X and Y’s birthdays between 7:00pm and 7:30pm;

(d) on Easter Sunday and on Christmas Day.

10. The Paternal Grandparents may forward to X and Y, via a contact post office address provided to them by the Mother for that purpose, cards, gifts and letters on their birthdays, at Easter and Christmas.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 6182 of 2020
Judgment of:	JUDGE BENDER
Date of judgment:	18 August 2022
Catchwords:	FAMILY LAW – PARENTING – what time, if any, the Father spends with the children – what time, if any, the Paternal Grandparents spend with the children – where the Mother alleges family violence perpetrated by the Father during the relationship – the Mother argues the Father poses an unacceptable risk to the children – where the Father has diagnosed mental health issues and a history of illicit substance abuse which the Father fails to acknowledge or undertake treatment for – the Mother argues the Paternal Grandparents are unable to prevent the Father attending their time with the children – where the Paternal Grandparents do not accept the Father is a risk to the children. FAMILY LAW – HELD – the Mother have sole parental responsibility – the children live with the Mother – there be no time or communication with the Father – the Father be permitted to send the children gifts and cards on special occasions – there be no face to face time with the Paternal Grandparents – there be weekly FaceTime communication with the Paternal Grandparents – the Paternal Grandparents be permitted to send the children gifts and cards on special occasions.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 61DA, 65DAA
Cases cited:	Goode & Goode [2006] FamCA 1346
Division:	Division 2 Family Law
Number of paragraphs:	269
Date of hearing:	26 April 2022, 27 April 2022, 28 April 2022, 5 May 2022, 6 May 2022
Place:	Melbourne
Counsel for Applicant:	Ms O’Connell
Counsel for First Respondent:	Mr Cenacchi
Counsel for Second Respondent:	Mr Byrne
Counsel for Independent Children’s Lawyer:	Ms Elleray

MLC 6182 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS WATTON Applicant
AND:	MR WATTON First Respondent
MR B WATTON & MS C WATTON Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	18 AUGUST 2022