Cassidy and Wells and Ors - [2014] FamCA 415

FAMILY COURT OF AUSTRALIA

CASSIDY & WELLS AND ORS

[2014] FamCA 415

FAMILY LAW – CHILDREN – Father failed to participate in hearing – Parties include paternal and maternal grandparents – Agreement reached by participating parties for children to continue to live with the maternal grandmother and spend time with the paternal grandmother and for the maternal grandmother, mother and paternal grandmother to share parental responsibility for the children – Consideration of risks of harm posed by parents – Active role of grandmothers in care of children – Best interests of the children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN(7)
Family Law Rules 2004 (Cth) r 16.07

Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Jarrah & Fadel [2014] FamCAFC 14
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53

Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Ms Cassidy

FIRST RESPONDENT:	Mr Wells
SECOND RESPONDENT:	Ms J Harris
THIRD RESPONDENT:	Ms P Harris
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Dubbo

FILE NUMBER:

DUC

182

2012

DATE DELIVERED:

18 June 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

13 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Warwick McCarthy & Co Solicitors

FIRST RESPONDENT:

No appearance

SOLICITOR FOR THE SECOND RESPONDENT:	Michelle Harding Lawyer
THIRD RESPONDENT:	Self-represented Litigant
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Dubbo

Orders

That all previous Orders in relation to the children E born … 2008 and T born … 2009 (“the children”) are discharged.
That the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother have equal shared parental responsibility of the children.
That the children live with the Third Respondent maternal grandmother.
That the children spend time with the Applicant paternal grandmother:
(a)For the first half of each school holiday period for terms 1, 2 and 3;
(b)For the first half of term 4 holidays in odd numbered years and the second half in even numbered years;
(c)By telephone each Sunday between 5.00 pm and 5.30 pm when the children are not spending time with the maternal grandmother;
(d)At any other times as agreed between the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother.
That when the Applicant paternal grandmother relocates to Town A, the Applicant paternal grandmother shall spend time with the children during school terms as follows:
(a)Every weekend from 4.00 pm Friday until 4.00 pm Sunday subject to Order 7 below;
(b)Every Tuesday afternoon from 4.00 pm until 7.00 pm; and
(c)Other times as agreed between the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother.
That the Applicant paternal grandmother’s time with the children pursuant to Order 5(a) above be forfeited on up to twelve (12) occasions each calendar year…

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

Case: [2014] FamCA 415
Decision Date: 18 June 2014

CaseChat Overview and Summary

The case of *Cassidy and Wells* involved an application concerning the parental responsibility and living arrangements for two children, E and T. The parties before the court were the applicant paternal grandmother, the second respondent mother, and the third respondent maternal grandmother. The dispute centred on the future care and upbringing of the children.

The court was required to determine the appropriate orders for parental responsibility, the children's residence, and the time they would spend with each of the involved parties. This included considering the specific arrangements for school holidays, regular contact, and the implications of the paternal grandmother's potential relocation. The court also had to address ancillary matters such as notification of medical events, access to school and medical information, and the children's surname.

Foster J ordered the discharge of all previous orders concerning the children. Equal shared parental responsibility was granted to the applicant paternal grandmother, the second respondent mother, and the third respondent maternal grandmother. The children were ordered to live with the third respondent maternal grandmother. Specific provisions were made for the paternal grandmother to spend time with the children, including during school holidays and, upon her relocation, during school terms with defined weekend and weekday contact. The court also stipulated that the second respondent mother was not to permanently reside with the third respondent maternal grandmother, though limited overnight stays were permitted. Further orders addressed communication, notification of medical events, and access to children's information.

Orders

Orders of the court

That all previous Orders in relation to the children E born … 2008 and T born … 2009 (“the children”) are discharged.

That the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother have equal shared parental responsibility of the children.

That the children live with the Third Respondent maternal grandmother.

That the children spend time with the Applicant paternal grandmother:

(a) For the first half of each school holiday period for terms 1, 2 and 3;

(b) For the first half of term 4 holidays in odd numbered years and the second half in even numbered years;

(c) By telephone each Sunday between 5.00 pm and 5.30 pm when the children are not spending time with the maternal grandmother;

(d) At any other times as agreed between the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother.

That when the Applicant paternal grandmother relocates to Town A, the Applicant paternal grandmother shall spend time with the children during school terms as follows:

(a) Every weekend from 4.00 pm Friday until 4.00 pm Sunday subject to Order 7 below;

(b) Every Tuesday afternoon from 4.00 pm until 7.00 pm; and

(c) Other times as agreed between the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother.

That the Applicant paternal grandmother’s time with the children pursuant to Order 5(a) above be forfeited on up to twelve (12) occasions each calendar year upon either the Third Respondent maternal grandmother and Second Respondent mother providing notice to the Applicant paternal grandmother the prior Tuesday, except in circumstances of pressing need or emergency.

That all changeovers occur by way of the Applicant paternal grandmother collecting and returning the children from the Third Respondent maternal grandmother’s residence unless otherwise agreed.

That the Second Respondent mother shall not permanently reside with the Third Respondent maternal grandmother. Nothing in this Order prevents the Second Respondent mother from visiting the Third Respondent maternal grandmother or staying overnight on up to two (2) nights each week when the children are living with the Third Respondent maternal grandmother unless otherwise agreed or in the case of medical emergency.

That the parties shall provide to each other in writing details of any change of address, telephone number and/or other contact details within forty-eight (48) hours of such change.

10.

That the children are to be known by the surname of “Wells” and no other surname.

11.

That during any period referred to in these Orders, in the event of the children being hospitalised or receiving medical attention or T suffering a seizure, the party spending time with the children shall notify the other parties as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital or after the event.

12.

That these Orders are sufficient authority for the parties to contact the children’s school or medical providers and to obtain information pertaining to the children.

13.

That all outstanding applications be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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