Becker & Waterman - [2022] FedCFamC2F 1611

Federal Circuit and Family Court of Australia
(DIVISION 2)
Becker & Waterman [2022] FedCFamC2F 1611

File number(s): MLC 10632 of 2020

Judgment of: JUDGE GLASS

Date of judgment: 28 November 2022

Catchwords: FAMILY LAW – PARENTING – allocation of parental responsibility – where parties have been unable to make joint decisions in relation to the child – whether child should hold a foreign passport in circumstances where the child is a Country B citizen – competing proposals for young child’s time with father

Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 61DA, 65DAA, 65DAC

Cases cited:
Boyle & Zahur & Anor (2017) FLC 93-814; [2017] FamCAFC 263

Lennon & Lennon [2011] FamCA 571

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

Mazorski & Albright (2007) 37 Fam LR 518

MCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Division: Division 2 Family Law

Number of paragraphs: 94

Date of last submission/s: 8 November 2022

Date of hearing: 7-8 November 2022

Place: Melbourne

Counsel for the Applicant: Mr Stavris

Solicitor for the Applicant: James Harris Lawyers

Counsel for the Respondent: Ms Swart

Solicitor for the Respondent: Northcote Lawyers
ORDERS

MLC 10632 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BECKER

Applicant

AND:
MS WATERMAN

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

28 november 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged including the watch list order contained in Orders 1 & 2 of the Orders made 18 December 2020 AND IT IS REQUESTED THAT the Australian Federal Police remove the name of the child X born in 2019 (“X”) from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

Parental responsibility
2.The Mother have sole parental responsibility for decisions concerning major long term issues for X.

2022 Christmas travel
3.The Mother be permitted to travel internationally (specifically to Country B) with X in the period from Monday 12 December 2022 until Monday 9 January 2023.
4.The Father spend compensatory time with the child as follows:
(a)from 8.15am Thursday 8 December 2022 until 9.00am Monday 12 December 2022; and
(b)from 5.00pm Tuesday 10 January 2023 until 5.00pm Saturday 14 January 2023.

Parenting arrangements
5.X live with the Mother.
6.X spend time with the Father as follows:
(a)During school terms, from 9 November 2022 until 21 March 2023 on a fortnightly basis as follows:
(i)In Week One - from 8.15am on Friday until 5.00pm on Saturday; and
(ii)In Week Two - from 5.45pm on Thursday until 5.45pm on Friday.

(b)During school terms, from 22 March 2023 on a fortnightly basis as follows:
(i)In Week One - from 8.15am on Friday until 5.00pm on Sunday; and
(ii)In Week Two - from 5.45pm on Thursday until 5.45pm on Friday.

(c)During school terms, from 22 March 2024 until X commences school as follows:
(i)In Week One - from 5.45pm on Thursday until 5.00pm on Sunday; and
(ii)In Week Two - from 5.45pm on Thursday until…

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 Becker & Waterman

Details

AGLC: Becker & Waterman [2022] FedCFamC2F 1611
Case: [2022] FedCFamC2F 1611
Decision Date

CaseChat Overview and Summary

These proceedings concern X, born in 2019. The parties separated shortly after his birth. Since that separation, X has lived with his mother, Ms Waterman, and spent time with his father, Mr Becker, as agreed between the parties. Currently, X spends time with Mr Becker for one night each week. Mr Becker now proposes that the parties have equal shared parental responsibility for X and that X now spend time with him for four nights per fortnight, increasing to five nights per fortnight when he commences school in 2025. He seeks to restrain Ms Waterman by injunction from obtaining a Country B passport for X. The other particulars of his application are contained in his Amended Initiating Application filed 3 November 2022. Ms Waterman now proposes that she have sole parental responsibility for X and that X spend gradually increasing time with his father from two nights per fortnight now, to three nights per fortnight from March next year, and four nights per fortnight from March 2024. She seeks to be at liberty to obtain a Country B passport for X. The other particulars of her application are contained in her Amended Response filed 28 October 2022. The court determined that an order for equal shared parental responsibility is not in X's best interests. The statutory presumption is accordingly rebutted. The court accepts that to exclude Mr Becker from decision-making in relation to major long-term issues affecting X is a very significant step and a serious interference with fundamental rights. However, to leave both parties with parental responsibility would continue to expose X to the risk of further disputation and litigation in relation to decisions for him. The court considers that risk justifies the relevant interference. The court determines it is in X's best interests for sole parental responsibility for him to be vested in Ms Waterman. The court determines that it is in X's best interests for a Country B passport to issue and for his passports to be retained by Ms Waterman with whom he will primarily reside. The court further determines that Ms Waterman's proposals for X's time with his father are in his best interests. The court orders that all previous parenting orders be discharged including the watch list order contained in Orders 1 & 2 of the Orders made 18 December 2020. The court orders that the mother have sole parental responsibility for decisions concerning major long term issues for X. The court orders that X live with the mother and spend time with the father on a fortnightly basis. The court orders that X's passports be retained by the mother. The court orders that the mother be permitted to travel internationally with X to visit her family in Country B for up to five weeks each year, including Christmas travel. The court orders that the mother be at liberty to have X attend a Country B school program on Wednesday afternoons and a Country B-speaking playgroup on Saturday mornings. The court orders that the parents attend counselling and complete a Parenting Orders Program as recommended by the Consultant. The court orders that the parents be restrained from discussing any matters relating to the proceedings in the presence or hearing of X.

Orders