Castree & Moyle - [2021] FedCFamC1F 275

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Castree & Moyle [2021] FedCFamC1F 275

File number(s): CRC 274 of 2018

Judgment of: JARRETT J

Date of judgment: 9 November 2021

Catchwords: FAMILY LAW – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – best interests of the child – where a sole parental responsibility order is sought – where there is no clear evidence that an order for sole parental responsibility will advance the best interests of the child – where there is evidence of family violence, and the presumption in s 61DA(1) is not engaged – where the application for sole parental responsibility fails for want of evidence.

Legislation: Family Law Act 1975 (Cth), ss 61DA(1), 61DA(2), 61DA(3)

Cases cited: Lansa & Clovelly [2010] FamCA 80

Division: Division 1 First Instance

Number of paragraphs: 5

Date of last submission/s: 9 November 2021

Date of hearing: 9 November 2021

Place: Brisbane

The Applicant No appearance

Counsel for the Respondent Mr Jackson

Solicitor for the Respondent CB Legal Pty Ltd

Counsel for the Independent Children’s Lawyer Mr Mueller

Solicitor for the Independent Children’s Lawyer Bryant McKinnon Lawyers
ORDERS

CRC 274 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CASTREE
Applicant

AND:
MS MOYLE
Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

9 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The child X born in2011 (the child) live with the respondent.
2.The child spend time with the applicant from time to time as might be agreed between the applicant and the respondent.
3.Otherwise all outstanding applications be dismissed
4.The Independent Children’s Lawyer is discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Castree & Moyle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

The orders will be as the mother proposes. They are consistent with her evidence as set out in her affidavit filed on 17 September this year.
An issue has arisen about the parental responsibility order. Initially, the mother sought an order for sole parental responsibility. I have engaged with counsel about that and my view is that an order for sole parental responsibility is not necessary. There is Full Court authority to the effect that making an order which interferes with parental responsibility is something…

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 Castree & Moyle

Details

AGLC: Castree & Moyle [2021] FedCFamC1F 275
Case: [2021] FedCFamC1F 275
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Mr Castree and Ms Moyle over the parental responsibility and living arrangements for their child, X, born in 2011. The matter was heard in Division 1 of the Federal Circuit and Family Court of Australia, where Mr Castree, the Applicant, did not appear, and Ms Moyle, the Respondent, was represented by Mr Jackson. Mr Mueller, counsel for the Independent Children’s Lawyer, and Bryant McKinnon Lawyers, solicitors for the Independent Children’s Lawyer, also participated in the proceedings.

The legal issues before the court were whether an order for sole parental responsibility was necessary and whether the presumption of equal shared parental responsibility under section 61DA(1) of the Family Law Act 1975 (Cth) applied. Given the evidence of family violence by the Respondent towards the Applicant, the presumption did not apply. The court considered whether it was necessary to make an order for sole parental responsibility to advance the child’s welfare, given that there was no clear evidence of difficulties in the Applicant exercising parental responsibility or attempts by the Respondent to exercise parental responsibility inconsistently with the child’s welfare.

The court found that the presumption of equal shared parental responsibility did not apply in this case due to the evidence of family violence. The court also determined that it was not necessary to make an order for sole parental responsibility as no evidence suggested that it would advance the child's welfare. Therefore, the court upheld the Respondent's proposal for the child’s living arrangements and time spent with the Applicant.

The court made an order that the child live with the Respondent, spend time with the Applicant as agreed, dismissed all other outstanding applications, and discharged the Independent Children’s Lawyer.

Orders