FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wells & Wells [2024] FedCFamC2F 1516
File number(s): PAC 1922 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – PARENTING – Serious allegations of family violence – Lack of insight by the father – Children have not spent time with father for period of almost four years – Leaving the door open for relationship with the father Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D Cases cited: Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
Division: Division 2 Family Law Number of paragraphs: 150 Date of hearing: 26-28 August 2024 Place: Parramatta Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Monardo Legal Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Johnsons Law Group Solicitor Advocate for the Independent Children's Lawyer: Ms Karagiannis Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 1922 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WELLS
Applicant
AND: MS WELLS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS BY CONSENT:
1.That all previous Parenting Orders be discharged.
Parental Responsibility
2.That the mother shall have sole parental responsibility for making decisions about major long-term issues for the children X born in 2012 and Y born in 2013.
Live with
3.That the children shall live with the mother.
Arrangements for the father to spend time with and communicate with the children
4.The father be at liberty to post gifts and cards to the children to a specific address provided by the mother.
5.Within seven days of the date of these Orders, the mother provide to the father an address to which the father can post any gifts or card for the children.
Restraints
6.That the parents are restrained from:
(a)discussing with or in the presence of the children, any Court proceedings or legal issues relating to the mother or father; and
(b)showing any Court document from any proceedings relating to the mother or father to the children.
7.That the parents are restrained by injunction from physically disciplining the children or using physical discipline towards other children or animals in the children’s presence.
8.That the parents are restrained by injunction from denigrating the other parent or members of the other parent’s family to, including in writing, or in the presence or hearing of the children and shall immediately remove the children from the vicinity of any other person doing so.
9.That the parents are restrained by injunction from consuming any illicit drugs whilst caring for the children or within twenty-four (24) hours prior to the children being in their care.
Medical and Schooling Information
10.The parents shall keep one another informed at all times of:
(a)their current contact telephone number and advise the other parent of a change in such details within twenty-four (24) hours of such change occurring;
(b)any major medical problems or…
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- Case
- [2024] FedCFamC2F 1516
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CaseChat Overview and Summary
The primary legal issue before the court was whether it was in the best interests of the children for them to continue to live with their mother and have limited contact with their father, given the serious allegations of family violence and the father's lack of insight. The court had to consider the impact of the father's violent behaviour on the children, as well as the potential benefits of maintaining a relationship with their father. The court also had to determine the appropriate parenting arrangements that would ensure the children's safety and welfare, while also considering the need for the children to have a relationship with both parents.
The court found that it was in the best interests of the children for them to continue to live with their mother, given the serious allegations of family violence and the father's lack of insight. The court noted that the children had not spent any time with their father for almost four years, and that there was a risk that the father's violent behaviour could have a significant impact on the children's welfare. However, the court also recognised the importance of leaving the door open for a potential relationship with the father in the future, provided that he demonstrated a genuine commitment to addressing his violent behaviour and making positive changes in his life. The court made orders for the children to live with their mother, for the father to have limited contact with the children, and for the parents to adhere to a range of restraints and obligations designed to protect the children's welfare.
The court ordered that the children shall live with the mother, that the father be at liberty to post gifts and cards to the children to a specific address provided by the mother, and that the parents are restrained from discussing court proceedings or legal issues with the children, physically disciplining the children or using physical discipline towards other children or animals in the children’s presence, denigrating the other parent or members of the other parent’s family to, including in writing, or in the presence or hearing of the children, and consuming any illicit drugs whilst caring for the children or within twenty-four (24) hours prior to the children being in their care. The court also made orders for the parents to keep one another informed of certain matters relating to the children's welfare, for the mother to inform the father in writing of any specialist medical appointments with any new psychologist, psychiatrist, counsellor or therapist in relation to the children, and for the mother to sign any authorities or other documents as may be required to authorise any doctor or specialist or consultant upon whom the children attend to forward to the father, at his expense, copies of any medical reports.
Orders
Orders of the court
PAC 1922 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR WELLS
Applicant
AND:
MS WELLS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS BY CONSENT:
1. That all previous Parenting Orders be discharged.
Parental Responsibility
2. That the mother shall have sole parental responsibility for making decisions about major long-term issues for the children X born in 2012 and Y born in 2013.
Live with
3. That the children shall live with the mother.
Arrangements for the father to spend time with and communicate with the children
4. The father be at liberty to post gifts and cards to the children to a specific address provided by the mother.
5. Within seven days of the date of these Orders, the mother provide to the father an address to which the father can post any gifts or card for the children.
Restraints
6. That the parents are restrained from:
(a) discussing with or in the presence of the children, any Court proceedings or legal issues relating to the mother or father; and
(b) showing any Court document from any proceedings relating to the mother or father to the children.
7. That the parents are restrained by injunction from physically disciplining the children or using physical discipline towards other children or animals in the children’s presence.
8. That the parents are restrained by injunction from denigrating the other parent or members of the other parent’s family to, including in writing, or in the presence or hearing of the children and shall immediately remove the children from the vicinity of any other person doing so.
9. That the parents are restrained by injunction from consuming any illicit drugs whilst caring for the children or within twenty-four (24) hours prior to the children being in their care.
Medical and Schooling Information
10. The parents shall keep one another informed at all times of:
(a) their current contact telephone number and advise the other parent of a change in such details within twenty-four (24) hours of such change occurring;
(b) any major medical problems or illnesses suffered by the children while in their respective care;
(c) any medication that has been prescribed for the children;
(d) particulars of the others who may reside with the children; and
(e) any other matter relevant to the children’s welfare.
11. That in the event of the children suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a) The other parent is to be notified as soon as practicable and within four (4) hours;
(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the children attend as soon as practicable; and
(c) The medical practitioner or facility is to be advised that both parents have access to the children’s medical records and information retained by them upon request.
12. That the mother shall inform the father in writing as soon as practical of any specialist medical appointments with any new psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as ‘consultant’) in relation to the children.
13. That the mother will sign any authorities or other documents (if any) as may be required to authorise any doctor or specialist or consultant upon whom the children attend to forward to the father, at his expense, copies of any medical reports.
14. That within fourteen (14) days of these orders and thereafter within fourteen (14) days of the children’s subsequent enrolment at any school the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of each child’s school reports and any documents generally provided to parents by the school.
ICL meeting with children
15. That within seven (7) days of the date of these Orders, the Independent Children’s Lawyer is to meet with the children to explain the effect of these Order to the children, with the mother to do all reasonable things to facilitate the Independent Children’s Lawyer’s meeting with the children.
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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