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Bosley & Bosley

Bosley & Bosley

Case [2022] FedCFamC2F 1232 12 September 2022

Parental Responsibility

Best Interests of the Child

Unjustifiable Risk

Contact and Communication

Mental Health Issues

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Bosley & Bosley [2022] FedCFamC2F 1232

File number(s): SYC 4100 of 2015

Judgment of: JUDGE MORLEY

Date of judgment: 12 September 2022

Catchwords:
FAMILY LAW – parenting – undefended proceedings – Mother given repeated opportunities to file Response material – failure by Mother to file any material except for one affidavit towards commencement of matter – appearance by Mother at all Court events – no reasonable or good explanation by Mother – matter proceeded on an undefended basis.

FAMILY LAW – parenting – sole parental responsibility order made for Father – live with Father – spend time with Mother.

Legislation:
Evidence Act 1995 (Cth) ss 140, 144

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DA, 68L, 68LA

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Godfrey & Sanders [2007] FamCA 102

Grella & Jamieson [2017] FamCAFC 21

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

Johnson & Page [2007] FamCA 1235

KB & TC [2005] FamCA 458

M & M (1988) 166 CLR 69

M & S [2007] FLC 93-313

M v M (1988) 166 CLR 69

Mazorski & Albright[2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

McGregor & McGregor [2012] FamCAFC 69

Napier & Hepburn [2006] FamCA 1316

Tait & Densmore [2007] FamCA 1383

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

Division: Division 2 Family Law

Number of paragraphs: 151

Date of hearing: 6 August 2021

Place: Sydney

Solicitor for the Applicant: Ms Jamieson of Gibson Howlin Lawyers

Solicitor for the Respondent: Litigant in Person

Solicitor for the Independent Children's Lawyer: Ms Tin of Legal Aid NSW Sydney Central
ORDERS

SYC 4100 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BOSLEY

Applicant

AND:
MS BOSLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

12 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.That the Parenting Orders of the Family Court of Australia dated 10 April 2018 are discharged in their entirety, being orders 1 – 22.
2.That the Father has sole parental responsibility for the children X and Y born in 2011 (“X and Y “ or “the children”).
3.That the Father will contact the Mother before making any major long-term parental responsibility decision with respect to the children and attempt to come to an agreement and if an agreement cannot be reached, he will inform her of the decision that has been made.
4.That the children, live with the Father.
5.That X spend time with the Mother as follows:
(a)From after school Friday until 6:00PM Sunday, each alternate weekend in school terms.
(b)From after school Friday until 4:00PM Saturday, each alternate weekend in the other weeks, in school terms.
(c)During school holidays, for the time in orders 3(a) and 3(b) and otherwise additional time by mutual agreement but for no more than 3 nights in one block.
(d)On X…

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

AGLC: Bosley & Bosley [2022] FedCFamC2F 1232
Case: [2022] FedCFamC2F 1232
Decision Date

CaseChat Overview and Summary

Bosley & Bosley concerned final parenting proceedings between Mr Bosley and Ms Bosley, parents of twin daughters X and Y. The matter was heard undefended on 6 August 2021 and the orders sought by Mr Bosley were made. The proceedings were the second final parenting hearing concerning the children, the first having resulted in final orders by consent on 10 April 2018. The consent orders provided that the parents had equal shared parental responsibility for the children and that the children live with their mother and spend defined time with their father. In November 2018, the mother was hospitalised and the children came into the father's care. The father filed an application on 26 July 2019 seeking sole parental responsibility for the children and that they live with him and spend time with their mother. The mother filed no Response to the application and appeared on her own behalf at all Court events. The Court made an order on 18 February 2020 that the children be represented by an Independent Children's Lawyer (ICL) in the proceedings. The ICL filed a Case Outline document and the father's solicitor advocate made verbal submissions at the undefended hearing. The mother made oral submissions on her own behalf. The father sought sole parental responsibility for the children, that they live with him and spend defined time with their mother. The mother opposed sole parental responsibility for the father and opposed the children living with him. The mother did not oppose the orders sought by the father and the ICL as to the time that the children spend with their mother. The mother opposed the orders as to her health issues and those of the father. The Court found that the orders proposed by the father and supported by the ICL were orders proper to be made in the best interests of the children, with their interests as the paramount consideration. The Court found that the mother's failure to engage with the proceedings by filing a Response and evidence was itself a demonstration of a serious lack of parenting capacity, a serious lack of motivation to involve herself in these proceedings in such a way that all appropriate evidence is before the court to assist the court in determining what parenting arrangements are best for X and Y. The Court found that the mother had not taken all of the opportunities available to her to spend time with and communicate with the children. The Court found that the father had demonstrated adequate parenting capacity to provide for the children's needs, including their emotional and intellectual needs. The Court found that the mother had failed to demonstrate a proper attitude to the responsibilities of parenthood. The Court found that the presumption set out in section 61DA that it is in the best interests of the children for the children's parents to have equal shared parental responsibility for them applied in this matter, but the presumption had been rebutted by the evidence that had satisfied the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them. The Court made the orders sought by the father and supported by the ICL, subject to some changes.

Orders