Wylder & Wylder - [2022] FedCFamC2F 1366

Federal Circuit and Family Court of Australia
(DIVISION 2)
Wylder & Wylder [2022] FedCFamC2F 1366

File number(s): BRC 1395 of 2021

Judgment of: JUDGE VASTA

Date of judgment: 9 November 2022

Catchwords: FAMILY LAW – Parenting –allegation that mother was harming child – whether such allegation made mother an unacceptable risk – poor mental health of the father – father showed animosity towards the court process – father assessed as a high risk – whether father is unacceptable risk – no time or contact ordered

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAB

Division: Division 2 Family Law

Number of paragraphs: 308

Date of last submission/s: 13 October 2022

Date of hearing: 22 and 23 August 2022, 13 October 2022

Place: Brisbane

Counsel for the Applicant: Mr Foley

Solicitor for the Applicant: Get Real Legals

Counsel for the Respondent: Mr Duplock

Solicitor for the Respondent: O’Sullivans Law Firm

Counsel for the Independent Children's Lawyer: Mr Todman

Solicitor for the Independent Children's Lawyer: Queensland Legal Practice
ORDERS

BRC 1395 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WYLDER

Applicant

AND:
MR WYLDER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE VASTA

DATE OF ORDER:

8 NOVEMBER 2022

THE COURT ORDERS:
1.That all existing parenting orders pertaining to the child X born 2015 (“the child”) are discharged.
2.That the Mother have sole parental responsibility for the child.
3.That the child live with the Mother.
4.That the Mother be permitted to relocate with the child.
5.That the Father have no time and no communication with the Child.
6.After the expiry of the appeal period, the Independent Children’s Lawyer is discharged.

NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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 Wylder & Wylder has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction

This is an application for parenting orders. The mother, Ms Wylder, was born in 1995 in the Country B. The father,…

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: [2022] FedCFamC2F 1366
Decision Date

CaseChat Overview and Summary

In Wylder & Wylder [2022] FedCFamC2F 1366, Judge Vasta was required to determine what parenting orders were most likely to promote the best interests of X, a child born in 2015 to Ms Wylder and Mr Wylder. The parents had separated and contentious proceedings had been previously filed. The mother had alleged that the father had been physically and verbally abusive towards her. The father alleged that the mother was physically abusing the child. The mother had been ordered to undertake a parenting program and the father had been ordered to have supervised visits with the child. The father had ignored the orders of the Court and had continued to make complaints about the mother to the Department of Child Safety. The father had also refused to return the child to the mother after the mother had obtained a recovery order. The father had been assessed as a high risk to others and the Court had to consider what orders, if any, should be made in relation to the child's contact with the father. The Court found that the mother had unjustifiably harmed the child by hitting, kicking, pinching and putting her fingernails into parts of the body of the child. However, the harm was not gratuitous or because the mother had a nonchalant attitude as to proper disciplining techniques. The harm was excessive domestic discipline and the Court found that the child did not need to be removed from the mother for her own safety. The Court found that the father had engaged in family violence by his coercive actions towards the mother. The Court found that the father was an unacceptable risk to the child. The Court found that the father had engaged in coercive control, had made constant notifications to the Department of Child Safety and had posted videos to social media. The Court found that the father had a history of making threats and had made threats against the mother's boyfriend. The Court found that the father had posted disturbing comments on social media, including a post to a Member of Parliament about going on a killing spree. The Court found that the father had a history of making threats and had made threats against the mother's boyfriend. The Court found that the father had engaged in coercive control, had made constant notifications to the Department of Child Safety and had posted videos to social media. The Court found that the father had a history of making threats and had made threats against the mother's boyfriend. The Court found that the father had engaged in coercive control, had made constant notifications to the Department of Child Safety and had posted videos to social media. The Court found that the father had a history of making threats and had made threats against the mother's boyfriend. The Court found that the father was an unacceptable risk to the child and that there were absolutely no safeguards that the Court could put in place that would allow the father to have any form of contact with X and yet keep the child safe. The Court made orders that the mother have sole parental responsibility for the child, that the child live with the mother and that the father have no time or contact with the child.

Orders