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Wolfe & Varni

Wolfe & Varni

Case [2022] FedCFamC2F 937 15 July 2022

Parental Responsibility

Family Violence

Best Interests of the Child

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wolfe & Varni [2022] FedCFamC2F 937

File number(s): SYC 7645 of 2013

Judgment of: JUDGE MORLEY

Date of judgment: 15 July 2022

Catchwords: FAMILY LAW – parenting – where Mother seeks no time and no communication between child and Father – where Father seeks time in line with previous parenting agreement made between the parties – family violence – assessment of unacceptable risk – not in the child’s best interests to spend time with or communicate directly with her father – costs

Legislation:
Family Law Act 1975 (Cth) – sections 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAB, 68B, 68C, 69R, 69Q, 69S, 69VA, 117

Crimes (Sentencing Procedure) Act 1999 (NSW)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Darley & Darley (No 4) [2021] FamCAFC 54

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Johnson & Page [2007] FamCA 1235

Keskin & Keskin [2019] FamCAFC 236

Latoudis v Casey (1990) 170 CLR 534

M v M (1988) 166 CLR 69

Medlon and Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664

Napier & Hepburn [2006] FamCA 1316

Penfold v Penfold (1980) 144 CLR 311

Sadasivam & Seshan [2019] FamCAFC 76

Sfakianakis v Sfakianakis [2019] FamCAFC 54; 59 Fam LR 419

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 284

Date of last submissions: 8 February 2021

Date of hearing: 26, 27, 28 August and 8 February 2021

Place: Sydney

Counsel for the Applicant: Mr Campton of Senior Counsel

Solicitor for the Applicant: Swaab Attorneys

Counsel for the Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Clayhills Escobar Solicitors
ORDERS

SYC 7645 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WOLFE

Applicant

AND:
MR VARNI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

15 JULY 2022

THE COURT ORDERS:
1.That pursuant to section 69VA of the Family Law Act 1975 (Cth), the Court declares that Mr Varni born in 1986 is the father of the child X born in 2012.
2.That the orders of 31 December 2013 are discharged.
3.That the mother Ms Wolfe (‘the Mother’) has sole parental responsibility for the child X born in 2012 (‘the child’).
4.That the child live with the Mother.
5.That the child spend no time with the Father Mr Varni (‘the Father’).
6.That the Mother is to do all acts and things necessary to provide to the Father, at a postal address provided by him, a photograph of the child one month prior to Christmas and a mid-year photograph and keep him advised as to the child’s progress at school. Notwithstanding this Order, the Mother is not be required to identify the child’s school or residential address.
7.That the Father is…

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 Wolfe & Varni

Details

AGLC: Wolfe & Varni [2022] FedCFamC2F 937
Case: [2022] FedCFamC2F 937
Decision Date

CaseChat Overview and Summary

The final hearing of parenting proceedings between Ms Wolfe (the Mother) and Mr Varni (the Father) took place in August 2019 and February 2021. The parties met and began their relationship in 2012, and separated on 12 November 2013. They have one child, X, born in 2012. The Mother filed an Initiating Application seeking orders that she have sole parental responsibility for X, that X live with her and that the Father spend no time with the child. The Father filed an Application – Contravention on 9 January 2018. The court was required to decide the legal issues of parental responsibility, family violence, and the best interests of the child. The court found that the Father had engaged in family violence against the Mother and X, and that he was an unacceptable risk to X if she spent time with or communicated with him. The court also found that the Mother had demonstrated an entirely proper attitude to X and the responsibilities of parenthood, while the Father had demonstrated an entirely improper and inadequate attitude. The court ordered that the Mother have sole parental responsibility for X, that X live with her, and that she not spend time with or communicate with her Father. The court also made orders for injunctions and passports as sought by the Mother. Finally, the court ordered the Father to pay the Mother's costs of, and incidental to, the listing of 4 March 2019 and half of the fees paid to Dr D for preparation of his report.

Orders