Wellington and Frost - [2018] FamCA 216

FAMILY COURT OF AUSTRALIA

WELLINGTON & FROST

[2018] FamCA 216

FAMILY LAW – CHILDREN – Family violence – where there is a long history of violence including imprisonment sentences against the husband – where the husband asserts change but the court finds it is too early to tell – where the psychological evidence establishes the wife’s fear of the husband makes her parenting role difficult – husband’s application for time even under supervision denied – risk found to be unacceptable.

Family Law Act 1975 (Cth)

In The Marriage of N and S [1996] FLC 92-655
Napier & Hepburn [2006] FamCA 1316

Fogarty, John, “Unacceptable risk – A return to basics” (2006) 20 Australian Journal of Family Law 249

APPLICANT:

Ms Wellington

RESPONDENT:

Mr Frost

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

2795

2013

DATE DELIVERED:

9 April 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Duffy and Simon

COUNSEL FOR THE RESPONDENT:

Mr Whitchurch

SOLICITOR FOR THE RESPONDENT:

Wheeler Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McCormack and Co

Orders

That the father is restrained by injunction from having contact with the children B born … 2004, C born … 2007, D born … 2007 and E born … 2012 save as provided by these orders.
That the husband be at liberty to send to the children a letter or card every two months and in addition, a letter, card and present for the relevant child’s birthday and for all children at Christmas.
For the purposes of paragraph 2, the children’s mother has the right to vet all such correspondence and determine whether it should be given to the children.
That the mother have sole parental responsibility for major long-term decisions relating to the children.
The mother forthwith authorize the children’s schools to provide the father with school newsletters, school progress reports and photographs and for that purpose, the husband be at liberty to provide the school with his address.
The other is authorised to provide the schools with a copy of these orders.
The appointment of the Independent Children’s Lawyer is discharged.
All extant parenting orders are otherwise discharged and save as to issues of costs, all extant applications are dismissed.
That pursuant to s.65DA(2) and s.62B, 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 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wellington & Frost has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family…

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.

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Details

Case: [2018] FamCA 216
Decision Date: 9 April 2018

CaseChat Overview and Summary

The case of *Wellington and Frost* concerned parenting orders made by Cronin J in the Federal Circuit and Family Court of Australia. The dispute involved the father's contact with his four children and the allocation of parental responsibility for long-term decisions.

The court was required to determine the extent of the father's contact with the children, the nature of parental responsibility for major long-term decisions, and the provision of information regarding the children's schooling. The court also considered the discharge of the Independent Children's Lawyer and the dismissal of extant applications.

Cronin J ordered that the father be restrained from having contact with the children except as provided by the orders. This included liberty to send letters, cards, and presents on specific occasions, subject to the mother's right to vet all correspondence. The mother was granted sole parental responsibility for major long-term decisions. The court also ordered that schools provide the father with newsletters, progress reports, and photographs, and that the mother provide the schools with a copy of the orders. The appointment of the Independent Children's Lawyer was discharged, and all other extant parenting orders and applications were dismissed, save for issues of costs. The orders included a fact sheet detailing obligations, consequences of contravention, and assistance for compliance, pursuant to ss 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

That the father is restrained by injunction from having contact with the children B born … 2004, C born … 2007, D born … 2007 and E born … 2012 save as provided by these orders.

That the husband be at liberty to send to the children a letter or card every two months and in addition, a letter, card and present for the relevant child’s birthday and for all children at Christmas.

For the purposes of paragraph 2, the children’s mother has the right to vet all such correspondence and determine whether it should be given to the children.

That the mother have sole parental responsibility for major long-term decisions relating to the children.

The mother forthwith authorize the children’s schools to provide the father with school newsletters, school progress reports and photographs and for that purpose, the husband be at liberty to provide the school with his address.

The other is authorised to provide the schools with a copy of these orders.

The appointment of the Independent Children’s Lawyer is discharged.

All extant parenting orders are otherwise discharged and save as to issues of costs, all extant applications are dismissed.

That pursuant to s.65DA(2) and s.62B, 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 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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