Aldrich & Harling - [2023] FedCFamC2F 606

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aldrich & Harling [2023] FedCFamC2F 606

File number(s): NCC 141 of 2022

Judgment of: JUDGE BETTS

Date of judgment: 12 May 2023

Catchwords: FAMILY LAW – Parenting – final orders – one child, aged 4 years old – whether the child should continue to live with the Father in the City B area or relocate with the Mother in the Town C area – where the Mother and Mother’s partner have misled the Court as to the reasons behind the relocation and future plans – where the Mother applied coercive pressure on the Father to consent to the relocation – where there are concerns about the Mother’s capacity to facilitate a relationship between the Father and child should the child live with the Mother – best interests of child to live with the Father.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Adamson & Adamson (2014) FLC 93-622

MRR & GR (2010) FLC 93-424

U & U [2002] 211 CLR 232

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 225

Date of last submission/s: 10 May 2023

Date of hearing: 8, 9 and 10 May 2023

Place: Newcastle

Counsel for the Applicant: Mr Duane

Solicitor for the Applicant: Gianacas Argiris McDonald

Counsel for the Respondent: Mr Willoughby

Solicitor for the Respondent: Conditsis Lawyers
ORDERS

NCC 141 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ALDRICH

Applicant

AND:
MS HARLING

Respondent

order made by:

JUDGE BETTS

DATE OF ORDER:

12 MAY 2023

THE COURT ORDERS THAT:
1.All prior parenting Orders be discharged.

Parental responsibility
2.The Mother and Father have equal shared parental responsibility for the long-term decisions relating to the care, welfare and development of X born 2018 (herein after referred to as “X”).

Live with
3.X is to live with the Father.

Spend time arrangements
4.X is to spend time with the Mother as agreed between the parties but failing agreement as follows:
(a)During 2023 school terms:
(i)10 July to 31 July 2023;
(ii)28 August to 18 September 2023; and
(iii)16 October to 6 November 2023.

(b)2023 Christmas Holiday period:
(i)For a three (3) week period ending two (2) clear days before X starts school.

(c)In the event that the Mother is able to travel to the greater City B region the Mother provide the Father with 28 days written notice of the dates she intends to be in the greater City B region and X will spend time with the Mother as agreed between the parties.
(d)Such further and other time as may be expressly agreed in writing between the parties.
(e)Once X commences primary school in 2024 as follows:
In School Term Holidays 1 and 3:
(i)From the first Saturday of the holiday period until the second Monday.

In School Terms Holidays Term 2:
(ii)Odd Numbered Years – From the first Saturday of the holiday period until the second Saturday of the holiday period; and
(iii)Even Numbered Years…

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 Aldrich & Harling

Details

AGLC: Aldrich & Harling [2023] FedCFamC2F 606
Case: [2023] FedCFamC2F 606
Decision Date

CaseChat Overview and Summary

The case of Aldrich & Harling was heard in the Federal Circuit and Family Court of Australia (Division 2). The primary issue was whether the child, X, should live with her father in City B or her mother in Town C. The legal issues included the consideration of the best interests of the child and the practical implications of relocation. The court had to determine whether the mother's proposed relocation would be in the child's best interests, considering factors such as the stability of the parents' employment, the impact on the child's relationship with both parents, and the potential for future litigation. The court found that while the mother's relocation would provide certain benefits, it would also create significant practical difficulties and potentially harm the child's relationship with her father. The court concluded that it was in the child's best interests to remain living with her father, with the mother having specified visitation times. The court ordered equal shared parental responsibility, with the child living primarily with the father and spending time with the mother as agreed or as ordered by the court. The court also set out detailed arrangements for the child's visitation with the mother, including specific times during school terms and holidays.

Orders