Welcher & Welcher - [2021] FedCFamC2F 628

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Welcher & Welcher [2021] FedCFamC2F 628

File number(s): DUC 407 of 2017

Judgment of: JUDGE OBRADOVIC

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – Parenting – serious allegations of family violence – verbal, psychological and emotional abuse –father’s belligerent attitude and approach – risks to child – order for no time.

Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 117, 102NA

Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer [1978] FamCA 86
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 154

Date of hearing: 28, 29 and 30 July 2021

Place: Dubbo (via video link)

Appearing for the Applicant: In Person

Counsel for the Respondent: Mr Dalzell

Solicitor for the Respondent: Peacockes Solicitors

Appearing for the Independent Children's Lawyer: Ms Blackman

Solicitor for the Independent Children's Lawyer: Legal Aid Dubbo
ORDERS

DUC 407 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WELCHER

Applicant

AND:
MS WELCHER

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

22 DECEMBER 2021

THE COURT ORDERS THAT:
1.The Mother shall have sole parental responsibility for the child, X, born in 2015 (“the child”).
2.The child shall live with the Mother.
3.The child shall spend no time with the Father.
4.The proceedings are listed for hearing in respect of costs at 9:30am on 9 May 2022 at Dubbo.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Welcher & Welcher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Introduction

The applicant, Mr Welcher (“father”) and the respondent, Ms Welcher (“mother”) have one child together, 6 year old X (“child”), who is the subject of these proceedings.
The parties separated in October 2016, shortly after the child had turned 1. The mother has always been her primary carer and primary attachment figure. After separation, the child spent very limited time with the father initially as arranged between the parents and in the presence of the mother, and then time supervised at a contact centre from early 2019, with such time being disrupted by the COVID-19 pandemic restrictions in 2020.…

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 Welcher & Welcher

Details

AGLC: Welcher & Welcher [2021] FedCFamC2F 628
Case: [2021] FedCFamC2F 628
Decision Date

CaseChat Overview and Summary

The parties in Welcher & Welcher were married and have one child together. The father commenced proceedings seeking orders for equal shared parental responsibility and for the child to live with both parents on a week-about basis. The mother sought sole parental responsibility for the child and that the child spend no time with the father. The Court had to determine parental responsibility, living arrangements and the time each parent was to spend with the child. The Court found that the father engaged in serious family violence against the mother. The father has an extensive history of anti-social and criminal behaviour, including breaches of Apprehended Domestic Violence Orders. The father has a violent and belligerent attitude towards the mother, her family and society in general. He lacks insight into his behaviour and its effect on others, and has no capacity to change his behaviour. The child has enjoyed her time with the father at the contact centre, but the father has shown no capacity to behave in a child-focused manner, even under supervision. The father has demonstrated that he cannot be trusted to comply with the orders of the Court. In all of the circumstances, the Court found that it was in the child’s best interest that the mother have sole parental responsibility for the child and that the child spend no time with the father. The Court made orders for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend no time with the father.

Orders