Caldwell & Prentiss - [2022] FedCFamC2F 1545

Federal Circuit and Family Court of Australia
(DIVISION 2)
Caldwell & Prentiss [2022] FedCFamC2F 1545

File number(s): NCC 941 of 2021

Judgment of: JUDGE BETTS

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – Parenting – one child, aged 4 years 11 months – where the mother has been the primary carer – where there the father has a history of drug use – where the parties relationship has broken down – where the father has spent regular time with the child since separation – where both parties have now re-partnered and started new families – where the mother seeks to relocate with the child to Town B, a 7 and a half hour drive from the father’s location – where the father opposes the relocation and seeks to implement an equal time arrangement – where the Independent Children’s Lawyer proposes that the mother should be allowed to relocate but that the father spend time with the child during school holiday periods – where the Court must consider all parties’ options against the evidence– best interests of the child.

Legislation: Family Law Act1975 (Cth), Pt VII

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

Godfrey & Sanders [2007] FamCA 102

Mazorski v Albright (2007) 37 Fam LR 518

MRR & GR (2010) FLC 93-244

U & U [2002] 211 CLR 232

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 209

Date of last submission/s: 17 June 2022

Date of hearing: 15, 16 and 17 June 2022

Place: Newcastle

Solicitors for the Applicant: WM Lloyd & Associates

Counsel for the Respondent: Mr Willoughby

Solicitors for the Respondent: Rachael Brennan & Associates Lawyers

Counsel for the Independent Children’s Lawyer: Mr Boyd

Solicitors for the Independent Children’s Lawyer: Adams & Associates

ORDERS

NCC 941 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CALDWELL

Applicant

AND:
MS PRENTISS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BETTS

DATE OF ORDER:

11 November 2022

THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The parents have equal shared parental responsibility for the child X born in 2017 (“the child”).
3.The child shall live with the Mother.
4.The Mother shall be at liberty to relocate the child’s residence to Town B NSW.
5.The child shall spend time with the Father as agreed between the parties in writing, but failing agreement, as follows:
(a)During the NSW Term 1, Term 2 and Term 3 NSW school holiday periods from 1pm on the first Saturday to 1pm on the last Saturday of those school holiday periods;
(b)During the Term 4 NSW school holiday periods from 1pm on 7 January to 1pm on the last Saturday of the school holiday period in even numbered years and from 1pm on the second day of the school holiday period until 1pm on 7 January in odd numbered years;
(c)In the Town B area at any time the Father can travel to Town B upon the Father giving the Mother…

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 Caldwell & Prentiss

Details

AGLC: Caldwell & Prentiss [2022] FedCFamC2F 1545
Case: [2022] FedCFamC2F 1545
Decision Date

CaseChat Overview and Summary

These proceedings concern the future parenting of a young girl, X, born in 2017. X’s parents are Mr Caldwell and Ms Prentiss. The parents separated soon after X was born and the Mother has always been X’s primary carer. The Mother seeks to relocate with X to Town B, a 7 and a half hour drive from the Father’s location. The Father opposes the relocation and seeks to implement an equal time arrangement. The Independent Children’s Lawyer proposes that the Mother should be allowed to relocate but that the Father spend time with the child during school holiday periods. The court must consider all parties’ options against the evidence, the best interests of the child, and whether the orders sought are reasonably practicable. The court found that an order for equal shared parental responsibility was in the best interests of the child. The court found that an equal time order would not be in the best interests of the child and was not reasonably practicable. The court found that an order for substantial and significant time was not reasonably practicable. The court ordered that the parents have equal shared parental responsibility for the child. The court ordered that the child shall live with the Mother. The court ordered that the Mother shall be at liberty to relocate the child’s residence to Town B. The court ordered that the child shall spend time with the Father during the school holiday periods and at other times either in the Town B area or the Town C area.

Orders