Acheson & Begbie (No 2) - [2023] FedCFamC1F 705

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acheson & Begbie (No 2) [2023] FedCFamC1F 705

File number(s): NCC 3670 of 2019

Judgment of: CHRISTIE J

Date of judgment: 22 August 2023

Catchwords: FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Proceedings between father and maternal grandmother – Where the mother is recently deceased – Where the child lives with the maternal grandmother – Where the applicant consents on the final day of the hearing to the Independent Children’s Lawyer’s Minute of Order such that the issues in the proceedings narrow – Parental responsibility – Competing applications for sole parental responsibility – Where the parties have a history of distrust and miscommunication – History of maternal grandmother attempting to involve the father in decisions for the child – Order for shared parental responsibility and for alternative dispute resolution where decision cannot be reached jointly – Meaningful relationship – Where the child has a positive relationship with both parties – Where the child’s relationship with the maternal grandmother is more secure – Proposal for changing the child’s living arrangements – Where any significant change to the current parenting arrangements would be likely to result in significant emotional dysregulation – Issue of passport – Where it is in the best interests of the child to have a passport.

Legislation: Family Law Act 1975 (Cth) ss 4, 60CC, 61DA

Cases cited:
Hartley & Hartley [2021] FedCFamC1F 178

Isles v Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Division: Division 1 First Instance

Number of paragraphs: 108

Date of hearing: 17-21 July 2023

Place: Sydney

Counsel for the Applicant: Ms Edwards

Solicitor for the Applicant: Genuine Legal

Counsel for the Respondent: Mr Harper

Solicitor for the Respondent: Kennedy & Cooke Lawyers

Counsel for the Independent Children's Lawyer: Mr Scarlett

Solicitor for the Independent Children's Lawyer: Venus & Smart
ORDERS

NCC 3670 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ACHESON

Applicant

AND:
MS BEGBIE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

22 AUGUST 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.The Father and Maternal Grandmother have equal shared parental responsibility for long term decisions about the care, welfare and development of the child X born 2017 (“the child”).
2.In making long term decisions the Maternal Grandmother shall inform the Father of the decision she proposes to make and within 7 days the Father shall reply to the Maternal Grandmother whether he agrees to the proposal.
3.Should the Father disagree with the Maternal Grandmother’s proposal he will provide written reasons within 7 days as to why he disagrees and make an alternative proposal.
4.If the parties are unable to reach agreement about the long term decision, they shall attend alternate dispute resolution to assist them to discuss options for resolving the impasse.

Live with and spend time arrangements for the…

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 Acheson & Begbie (No 2)

Details

AGLC: Acheson & Begbie (No 2) [2023] FedCFamC1F 705
Case: [2023] FedCFamC1F 705
Decision Date

CaseChat Overview and Summary

Acheson & Begbie (No 2) involves the determination of parental responsibility and living arrangements for a child named X, who was born in 2017 and has been in the care of his maternal grandmother for most of his life. The father, who initially sought sole parental responsibility and for X to live with him, filed an application in November 2019. The court has made several interim orders regarding X’s living arrangements and time spent with each parent. The primary legal issues revolve around the allocation of parental responsibility, the nature of the relationships between X and his father and his maternal grandmother, and the crafting of orders that promote meaningful relationships between X and both his parents. The court also considered the potential impact of changing X’s living arrangements, any deficits in the parenting capacity of both the father and the maternal grandmother, and whether X should have a passport.

The reasoning of the court involved a detailed analysis of the evidence presented, focusing on the safety and wellbeing of X. The court examined the relationships and interactions between X, his parents, and his maternal grandmother. The court found that the maternal grandmother had not raised any safety or wellbeing concerns for X and that neither party had significant deficits in parenting capacity that would place X at risk. The court was satisfied that the maternal grandmother had acted in X’s best interests in the past and that there was no basis to conclude that she would not continue to do so in the future. The court determined that equal shared parental responsibility was appropriate, with specific guidelines on how the parents would exercise their responsibilities. The court also set out detailed orders regarding the nature of the relationship between X and his father, as well as the arrangements for X to spend time with both his parents.

The court's outcome was that the parties should have equal shared parental responsibility, with specific guidelines for exercising that responsibility. The court ordered that X should live with his maternal grandmother, with detailed provisions for his time spent with both his parents. The court found that the maternal grandmother had acted in X’s best interests and that there were no significant parenting deficits on either side that would place X at risk. The court concluded that the current living arrangements were in X’s best interests and should be maintained. Additionally, the court determined that X should not have a passport at this time.

In summary, the court made orders for equal shared parental responsibility, with specific guidelines for exercising that responsibility. X was ordered to live with his maternal grandmother, with detailed provisions for his time with both his parents. The court found that the maternal grandmother had acted in X’s best interests and that there were no significant parenting deficits on either side. The court concluded that the current living arrangements were in X’s best interests and should be maintained, and that X should not have a passport at this time.

Orders

Orders of the court

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Background

Background to the litigation

Where there is substantial agreement to the content and form of the orders to be made it is not necessary for me to have regard to the evidence in the same detail that would be required had the matter remained fully contested. I must nonetheless be independently satisfied that the orders which are to be made operate in the best interests of the child and accordingly I will have regard to the relevant considerations under the Family LawAct1975 (Cth) (“the Act”).BACKGROUND X was born in 2017 in City C, moving to Region B with his parents soon thereafter. In 2017 X first came to the attention of child welfare authorities and the following month a safety plan was developed for him. That safety plan was reviewed in late 2017 and early 2018. On 1 April 2018 the parents separated. In mid-2018 the mother, the maternal grandmother and X left Region B. The following month, the mother, maternal grandmother and the maternal grandmother’s child J, born 2009, moved to Town K in New South Wales. In March 2019 the father spent time with X in the presence of the mother. In September 2019 the mother travelled to City C with the father and X. On the following day the father sent the maternal grandmother a text message indicating he had obtained a recovery order in respect of X. It is not controversial that he had not actually obtained a recovery order. On 12 November 2019 the father filed his Initiating Application, seeking that he have sole parental responsibility and X live with him. On 21 November 2019 the Court made orders for X to live with the mother provided she lived with the maternal grandmother and spend unsupervised day time with the father. On 1 May 2020, the court made orders for X to live with the maternal grandmother and spend time with the mother as agreed between the mother and the maternal grandmother and spend one weekend per month with the father provided he was living with the paternal grandparents and his time was supervised by them. On 27 June 2020 X spent his first period of overnight time with the father. On 4 May 2021 orders were made by consent varying the father’s time to provide that X spend time with him on the last Saturday of each calendar month from 10.00 am until 5.00 pm the following Monday. In 2021 X was diagnosed with attention deficit hyperactivity disorder (“ADHD”). In early 2022 the father facilitated the mother spending time with X contrary to the maternal grandmother’s request. That request was made the previous day when an incident occurred at the childcare centre with the mother which resulted in the police being called and the centre going into lockdown. In March 2022 the father came to Region F to spend time with X but the maternal grandmother did not permit the time to occur because of the father’s facilitation of the mother’s time with X earlier in 2022. In 2022, the maternal grandmother found the mother deceased at her own residence at approximately 5.00 pm. X was present and had been present when his mother died.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The ICL relied on:(a)Case Outline filed 13 July 2023; and(b)Report of Court Child Expert dated 16 May 2023.CONSIDERATION It is not controversial that X has lived with the maternal grandmother for most of his young life. From time to time his mother was also a member of that household. At all times his maternal aunt has been a member of that household. The Court Child Expert records that neither the father nor the maternal grandmother raised any concerns for X’s safety or wellbeing in the other household. However, at trial the father indicated that from his perspective the risks to X posed by the maternal grandmother were threefold:(1)The maternal grandmother had facilitated X’s time with the mother which placed X at risk including on the day of the mother’s death;(2)The maternal grandmother had allowed X to come into contact with Mr D (her former partner); and(3)The maternal grandmother had unnecessarily restricted X’s time with the father. The first asserted risk above is not a risk factor that exists in the future although the father submitted that the maternal grandmother’s past conduct may reflect on her protective capacity. The second asserted risk is addressed in the reasons that follow. The third asserted risk above is not, for reasons that follow, reflective of the evidence before me. The issues which arose for determination in this case are as follows:(a)Should decision making responsibility for major long term issues be held by one party or the other or shared (either equally or in some other manner)?(b)What is the nature of the relationship between X and his father?(c)What is the nature of the relationship between X and the maternal grandmother?(d)How can orders be crafted to best promote a meaningful relationship between X and the father and between X and the maternal grandmother?(e)What would be the impact on X’s of his living arrangements changing?(f)Are there deficits in the parenting capacity of the maternal grandmother such as would place X at potential risk of harm? If so can these be ameliorated?(g)Are there deficits in the parenting capacity of the father such as would place X at potential risk of harm? If so can these be ameliorated?(h)Should X have a passport?Parental responsibility Both the father (at the commencement of the hearing) and maternal grandmother sought an order for sole parental responsibility (albeit the form of order sought by the maternal grandmother followed the proposal of the Court Child Expert discussed below). The ICL at the commencement of the hearing submitted that the presumption would be rebutted. In the ICL’s proposed Minute of Orders (Exhibit 26) at the conclusion of the hearing it was sought that the parties have equal shared parental responsibility and orders as to how the exercise of parental responsibility would be negotiated. The father told the Court Child Expert that the maternal grandmother “has not involved him in any decision-making in relation to where [X] was to attend school, nor provided him with any information about [X’s] progress at school and/or medical and other health issues”.

File number(s):	NCC 3670 of 2019
Judgment of:	CHRISTIE J
Date of judgment:	22 August 2023
Catchwords:	FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Proceedings between father and maternal grandmother – Where the mother is recently deceased – Where the child lives with the maternal grandmother – Where the applicant consents on the final day of the hearing to the Independent Children’s Lawyer’s Minute of Order such that the issues in the proceedings narrow – Parental responsibility – Competing applications for sole parental responsibility – Where the parties have a history of distrust and miscommunication – History of maternal grandmother attempting to involve the father in decisions for the child – Order for shared parental responsibility and for alternative dispute resolution where decision cannot be reached jointly – Meaningful relationship – Where the child has a positive relationship with both parties – Where the child’s relationship with the maternal grandmother is more secure – Proposal for changing the child’s living arrangements – Where any significant change to the current parenting arrangements would be likely to result in significant emotional dysregulation – Issue of passport – Where it is in the best interests of the child to have a passport.
Legislation:	Family Law Act 1975 (Cth) ss 4, 60CC, 61DA
Cases cited:	Hartley & Hartley [2021] FedCFamC1F 178 Isles v Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Division:	Division 1 First Instance
Number of paragraphs:	108
Date of hearing:	17-21 July 2023
Place:	Sydney
Counsel for the Applicant:	Ms Edwards
Solicitor for the Applicant:	Genuine Legal
Counsel for the Respondent:	Mr Harper
Solicitor for the Respondent:	Kennedy & Cooke Lawyers
Counsel for the Independent Children's Lawyer:	Mr Scarlett
Solicitor for the Independent Children's Lawyer:	Venus & Smart

NCC 3670 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ACHESON Applicant
AND:	MS BEGBIE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	22 AUGUST 2023