Catrine & Isak (No 2) - [2024] FedCFamC1F 311

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Catrine & Isak (No 2) [2024] FedCFamC1F 311

File number: BRC 2585 of 2019

Judgment of: CAREW J

Date of judgment: 14 May 2024

Catchwords:
FAMILY LAW – CHILDREN – Best interests – Where on the first day of trial, the parents presented a signed minute of order resulting in a change in the primary care of the child – Where the independent children’s lawyer did not consent to the proposed order but did not oppose the order – Where the matter was adjourned part-heard to enable the parents to file sufficient evidence to satisfy the Court that the agreed arrangement was in the best interests of the child – Where the children lived with the mother and spent time with the father after separation – Where there was a change in care in 2019 following the mother’s voluntary admission to a psychiatric hospital – Where a consent order was entered in relation to the two older children, and a dispute only remained about the arrangements for the youngest child – Where there were allegations of significant family violence suffered by the mother which were disputed by the father – Where the mother has demonstrated her continued recovery from mental illness and/or alcohol addiction over an extended period – Where the parents now present a united front about what order best meets the child’s future interests – Where the child will live with the mother and spend five nights a fortnight with the father – Where the parents will share parental responsibility, save for health and education in which the mother will have sole parental responsibility.

FAMILY LAW – COSTS – Where the independent children’s lawyer made an application against the parties or their solicitors for costs thrown away as a result of the adjourned trial and an application against the mother for costs of the trial adjourned in 2021 – Where the parents are both represented in proceedings by a grant of legal aid under the Commonwealth Family Violence and Cross Examination of Parties Scheme – Consideration of the meaning of “legal aid” in s 117(4) – Where both parents are employed – Where an order for the father and mother to equally share the costs thrown away by the adjournment but not for the entire trial is justified in the circumstances.

Legislation:
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65DAA, 65DAC, 117

Family Law Amendment Act 2023 (Cth) s 12

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Legal Aid ACT & Westwell (2021) FLC 94–013

M & M (1988) 166 CLR 69

Number of paragraphs: 75

Date of hearing: 13 & 14 March and 10 May 2024

Place: Brisbane

Counsel for the Applicant: Mr Duplock

Solicitor for the Applicant: Lander Solicitors

Counsel for the Respondent: Mr Hartwell

Solicitor for the Respondent: Focus Family Law

Counsel for the Independent Children’s…

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 Catrine & Isak (No 2)

Details

AGLC: Catrine & Isak (No 2) [2024] FedCFamC1F 311
Case: [2024] FedCFamC1F 311
Decision Date: 14 May 2024

CaseChat Overview and Summary

In the case of Catrine & Isak (No 2), the primary concern was the best interests of the child, Z, following the separation of the parents. The parents, who had initially agreed on a shared care arrangement, presented a new minute of order to the court, which proposed a change in the primary care of the child. The independent children's lawyer did not consent to the proposed order but did not oppose it. The matter was adjourned part-heard to enable the parents to file sufficient evidence to satisfy the court that the agreed arrangement was in the best interests of the child.

The legal issues the court was required to decide included whether the proposed change in primary care was in the best interests of the child and whether the parents were entitled to costs for the adjourned trial. The court considered the mother's recovery from mental illness and/or alcohol addiction, the allegations of significant family violence, and the parents' united front about the child's future interests. The court also had to consider the meaning of "legal aid" in the context of the costs application.

The court found that the proposed care arrangement was in the best interests of the child, given the mother's demonstrated recovery and the parents' united front. The court ordered that the child would live with the mother and spend five nights a fortnight with the father, with the parents sharing parental responsibility, except for health and education, which would remain with the mother. Regarding costs, the court ordered that the father and mother would equally share the costs thrown away by the adjournment but not for the entire trial, considering that both parents were employed and represented by legal aid.

The court's final orders were that the child would live with the mother and spend five nights a fortnight with the father, with the parents sharing parental responsibility, except for health and education, which would remain with the mother. The father and mother were ordered to equally share the costs thrown away by the adjournment but not for the entire trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before turning to the submissions, it will be helpful to set out some background. BACKGROUND The father and mother commenced cohabitation in or about 2005 and married in 2008. They separated on a final basis on 12 December 2018 and divorced in 2020. The father was born in 1978 and is 45 years of age. The father is employed as a public servant. The father lives in a three-bedroom rental home in Town J. The father re-partnered with Ms B, aged 35, in early 2023 although they do not currently live together. The father and Ms B expressed an intention to the family report writer, Ms G, in or about 16 January 2024, to commence to live together in April this year, but have not done so. The mother was born in 1979 and is 44 years of age. The mother identifies as Aboriginal and is employed four days a week by an Indigenous community group. The mother lives in a four-bedroom home in Town J. Following separation, the mother re‑partnered with Mr C. Mr C is 50 years of age and employed as a tradesperson. Mr C identifies as Aboriginal. Their relationship commenced in 2019 and they married in 2020 but separated in late 2023. Mr C now lives in a three-bedroom property in Town J with his youngest child from a previous relationship. At the commencement of these proceedings, they related to the care of three children, namely, X born 2006 (“X”), D born 2010 (“D”), and Z born 2013 (“Z” or “the child”). Mr C was joined to the proceedings as the second respondent on 3 September 2021 after it was confirmed that he was the biological father of D. After separation, the mother and father agreed to an informal arrangement for the children to live with the mother and spend each alternate Monday and Wednesday after school until 6.00pm and each alternate weekend with the father. Proceedings were commenced by the father in March 2019. In mid-2019, an interim order was made by consent for the children to live with the father after the mother was admitted to a psychiatric hospital as a voluntary patient. The parents shared parental responsibility. The mother spent time with the children three afternoons per week from after school to 6.00pm and each Sunday afternoon supervised by one of the maternal grandparents, Ms M, or another agreed party. From 29 August 2019, by further interim order by consent, the children’s time with the mother increased to each alternate weekend on both Saturday and Sunday from 9.00am to 5.00pm and each alternate Wednesday and Friday from after school until 6.30pm. The requirement for supervision was removed. This arrangement continued for Z until 8 August 2022 when an interim order was made by consent for a gradual increase in his time with the mother to each alternate Wednesday and Friday after school and each alternate weekend. The arrangements for the older children, X and D, substantially changed in 2021. X commenced living with the father full-time in April 2021 and spends time with the mother in an ad hoc manner in accordance with her wishes. X has since commenced living independently. Following the discovery of D’s biological father and allegations of family violence made against the father, D commenced solely living with the mother in June 2021.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	BRC 2585 of 2019
Judgment of:	CAREW J
Date of judgment:	14 May 2024
Catchwords:	FAMILY LAW – CHILDREN – Best interests – Where on the first day of trial, the parents presented a signed minute of order resulting in a change in the primary care of the child – Where the independent children’s lawyer did not consent to the proposed order but did not oppose the order – Where the matter was adjourned part-heard to enable the parents to file sufficient evidence to satisfy the Court that the agreed arrangement was in the best interests of the child – Where the children lived with the mother and spent time with the father after separation – Where there was a change in care in 2019 following the mother’s voluntary admission to a psychiatric hospital – Where a consent order was entered in relation to the two older children, and a dispute only remained about the arrangements for the youngest child – Where there were allegations of significant family violence suffered by the mother which were disputed by the father – Where the mother has demonstrated her continued recovery from mental illness and/or alcohol addiction over an extended period – Where the parents now present a united front about what order best meets the child’s future interests – Where the child will live with the mother and spend five nights a fortnight with the father – Where the parents will share parental responsibility, save for health and education in which the mother will have sole parental responsibility. FAMILY LAW – COSTS – Where the independent children’s lawyer made an application against the parties or their solicitors for costs thrown away as a result of the adjourned trial and an application against the mother for costs of the trial adjourned in 2021 – Where the parents are both represented in proceedings by a grant of legal aid under the Commonwealth Family Violence and Cross Examination of Parties Scheme – Consideration of the meaning of “legal aid” in s 117(4) – Where both parents are employed – Where an order for the father and mother to equally share the costs thrown away by the adjournment but not for the entire trial is justified in the circumstances.
Legislation:	Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65DAA, 65DAC, 117 Family Law Amendment Act 2023 (Cth) s 12
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Legal Aid ACT & Westwell (2021) FLC 94–013 M & M (1988) 166 CLR 69
Number of paragraphs:	75
Date of hearing:	13 & 14 March and 10 May 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Duplock
Solicitor for the Applicant:	Lander Solicitors
Counsel for the Respondent:	Mr Hartwell
Solicitor for the Respondent:	Focus Family Law
Counsel for the Independent Children’s…