FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Callas & Gordon (No 2) [2022] FedCFamC1F 10
File number(s): MLC 3486 of 2017 Judgment of: MCGUIRE J Date of judgment: 1 February 2022 Catchwords: FAMILY LAW – CHILDREN - Application by father to set aside parenting orders made by consent in May 2018 – Where existing orders provide for the father to spend time with the child for five nights per fortnight – Where the father seeks an order for sole parental responsibility – Where the father seeks orders that child live with him – Whether there has been sufficient change in circumstances – Consideration of child’s best interests – Capacity of parents – Child’s views – Antagonistic relationship between parents - Order for equal time
FAMILY LAW – PROPERTY – Application by the wife pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) for an order setting aside property orders made by consent in this Court on 19 April 2018 – Application opposed by the husband – Consideration of relevant principles Application dismissed
FAMILY LAW – SPOUSAL MAINTENANCE – Application brought by wife for spousal maintenance – Application opposed by the husband - Where it was found that the wife failed to satisfy the onus of proof in respect of her claim – Wife shows prima facie need but does not explain disposal of significant lump sum from property settlement – Wife gives no evidence as to any effort to mitigate her circumstances - Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC(2), (3) 72, 74 and 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) at Division 6.2.1
Cases cited: Badawi & Badawi (2017) FLC 93-784
Barker & Barker (2007) Fam LR 36
Clifton & Stuart (1991) 92-194.
Granada Tavern v Smith [2008] FCA 646
Holland & Holland (1982) FLC 91-243
Lane & Lane (2016) FLC 93-699
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Molier & Van Wyk (1980) FLC 90-911
Mullane v Mullane (1983) 158 CLR 436
Oastler & Oastler (1993) 92-390
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Rice & Asplund (1979) FLC 90-725
Suiker & Suiker (1993) FLC 92-436
Thorne & Kennedy [2017] HCA 49
Division: Division 1 First Instance Number of paragraphs: 232 Date of hearing: 21, 22 and 23 December 2020; 10, 11, 12 and 13 May 2021; 14 and 15 July 2021; 23 and 24 August 2021; 13 and 20 October 2021 Place: Hobart Counsel for the Applicant: Mr Teserioro Solicitor for the Applicant: Sayer Jones Lawyers Counsel for the Respondent: In person Counsel for the Independent Children's Lawyer: Mr Goddard Solicitor for the Independent Children's Lawyer: McCormack and Co ORDERS
MLC 3486 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CALLAS
Applicant
AND: MS GORDON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
1 FEBRUARY 2022
THE COURT ORDERS THAT:
PARENTING
1.That all previous parenting…
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- Callas & Gordon (No 2) [2022] FedCFamC1F 10
- Case
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CaseChat Overview and Summary
The court considered the evidence presented by both parties and expert witnesses, including psychological evaluations of X. The mother's volatile and emotional personality contrasted with the father's calm and considered demeanor. Despite the parents' mutual suspicion and conflict, the court found that X had established meaningful relationships with both parents. The court emphasised that litigation was contrary to the child's best interests and encouraged the parents to resolve disputes through negotiation and cooperation. The court acknowledged the father's concerns about the mother's propensity to make unilateral decisions but recognised the parents' newfound insight into the importance of shielding X from their conflict.
The court weighed various factors under section 60CC of the relevant legislation, including the likely effect of changes in X's circumstances, the practical difficulties of maintaining contact with each parent, and the capacity of each parent to meet X's needs. The court found that while both parents had shortcomings, X's emotional well-being would be compromised if she spent significant time away from her mother. The father's proximity to the mother and X facilitated easy movement between their homes. Ultimately, the court made orders that aimed to balance the needs and rights of both parents while prioritising X's best interests.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
There is some merit in the father's argument that the mother is prone to making unilateral and perhaps spontaneous decisions in respect of X. Most notably was the mother's relocation with X to the K Region. This is again a factor of the mother's personality rather than some malicious intent. The indications from the evidence of both the parties in this Court is that they understand the need to communicate and contribute equally to long-term decisions for X. In this respect, and from the evidence of each of them in court, I glean some newfound insight and greater maturity in this respect.Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or(ii) any other children, or person (including any grandparent or other relative of the child), with whom the child has been living The orders sought by the father, although being a change of primary parent, are in reality discrete in any changes that would be forthcoming for X. She currently lives nine nights per fortnight with her mother and five nights with the father. The father proposes that the changes occur, in any substantial way, during school terms where she would go to school from his home. Similarly, the mother proposes that the father's time be effectively limited to weekends, although she has varied her position throughout this lengthy trial. I place some weight on Ms Y's evidence given in court, being more objective than that of either of the parents, where she says that X's emotional well-being would be compromised if she spends significant time away from her mother.Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis The father, to his great credit, has moved in close proximity to the mother who had previously moved herself and X to the Suburb H area. This in itself is demonstrative of the father's commitment to a relationship with X and also where, conversely, and whilst the mother undoubtedly had proper motives for the move, shows in her a capacity to act unilaterally and spontaneously without regard to X's relationship with the father. Nevertheless, there are now no practical difficulties in X moving easily between her parents’ homes as indeed she now does.Section 60CC(3)(f) the capacity of each of:(i) the child's parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, and including emotional and intellectual needs Each of the parents is critical of the other in this respect. The mother questions both the father's commitment to and his skills in caring for X. The father challenges the mother's capacity to commit to X's education and acknowledges what the mother herself admits are financial constraints which impact on her ability to accommodate X satisfactorily and consistently.