Christie and Holden - [2013] FamCA 1009

FAMILY COURT OF AUSTRALIA

CHRISTIE & HOLDEN

[2013] FamCA 1009

FAMILY LAW – CHILDREN – With whom a child lives – where competing applications by maternal and paternal grandmothers – where real risk of exposure to family violence in paternal grandmother’s care – where ordered the children live with maternal grandmother and spend time with paternal grandmother on school holidays – where previous travel difficulties considered - where maternal grandmother ordered sole parental responsibility for major long term issues of the children – where each grandmother ordered sole parental responsibility for attending to children’s cultural education whilst in their care.

Family Law Act 1975 (Cth) s 4, 4AB, 60B(2), 60CA, 60CC, 61DA, 61F

Tobin v Tobin (1999) 24 Fam LR 635
Nineth v Nineth (No.2) [2010] FamCA 1144
Donnell & Dovey (2010) FLC 93-428
Re CP (1997) 21 Fam LR 486

APPLICANT:

Ms Christie

RESPONDENT:

Ms Holden

INDEPENDENT CHILDREN’S LAWYER:

Ms Cope

FILE NUMBER:

CSC

736

2009

DATE DELIVERED:

19 December 2013

PLACE DELIVERED:

Townsville

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

19, 20 & 21 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Victoire

SOLICITOR FOR THE APPLICANT:

Sanderson & Parkes

COUNSEL FOR THE RESPONDENT:

Ms Lawrence

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sandra Sinclair Family Law

Mr Worsley

Cope Family Law

Orders

PARENTAL RESPONSIBILITY

That Ms Christie (“the maternal grandmother”), shall have sole parental responsibility for the major long term issues of the children E Holden born … 2006 and J Holden born … 2007 (“the children”).
Each of the maternal grandmother and Ms Holden (“the paternal grandmother”) shall have sole parental responsibility for attending to the children’s cultural education and welfare whilst the children are in their care.
Other than in an emergency, the maternal grandmother shall notify the other grandmother and Mr H and Ms M (“the parents”) at least one month prior to making any significant decision about the following matters regarding the children:
(a)Any medical or health matters concerning the children;
(b)Any medical or health matters affecting either grandmother which may affect the ability of that grandmother to care for the children;
(c)Matters relating to the education of the children, including but not limited to, the choice of school;
(d)Disciplinary matters other than of a trivial nature;
(e)Generally any matters regarding the children with respect of which the other grandmother and parents should be informed or consulted with respect to having regards to the provisions of Part VII of the Family Law Act 1975.
The respective grandmothers shall be responsible for the daily care, welfare and development of the children when the children are in their care.

LIVING ARRANGEMENTS

Except as otherwise ordered, the children are to live with the maternal grandmother.

SPENDING TIME AND COMMUNICATIONS

The children are to spend time with and communicate with the paternal grandmother as agreed between the maternal grandmother and the paternal grandmother and if they fail to agree then as follows:
(a)During Christmas…

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 Christie and Holden

Details

AGLC: Christie and Holden [2013] FamCA 1009
Case: [2013] FamCA 1009
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered competing applications by the maternal grandmother, Ms Christie, and the paternal grandmother, Ms Holden, concerning the living arrangements and time spent with two young children, E and J, who both suffer from Foetal Alcohol Syndrome Disorder. The proceedings were initiated by the children's father but evolved to focus on the grandmothers as the active parties. The paternal grandmother sought to maintain the status quo where the children lived with her, while the maternal grandmother sought for the children to live with her.

The court was required to determine with whom the children should live, the extent of time they should spend with the non-resident grandmother, and the allocation of parental responsibility for major long-term issues and cultural education. Key considerations included the children's specific needs due to their diagnosed condition, the history of care provided by each grandmother, and any risks associated with the proposed arrangements, particularly concerning family violence. The court also had to address previous difficulties with travel and communication between the parties.

The court's reasoning focused on the best interests of the children, as mandated by the *Family Law Act 1975* (Cth). It found that there was a real risk of the children being exposed to family violence in the paternal grandmother's care. Consequently, the court ordered that the children live with the maternal grandmother. The paternal grandmother was granted time with the children during school holidays, with specific arrangements detailed for alternating periods. The maternal grandmother was awarded sole parental responsibility for major long-term issues, while each grandmother was given sole responsibility for the children's cultural education while they were in their respective care.

The court made orders for the children to live with the maternal grandmother, Ms Christie, and to spend time with the paternal grandmother, Ms Holden, during school holidays according to a detailed schedule. Ms Christie was granted sole parental responsibility for the children's major long-term issues. Both grandmothers were ordered to have sole responsibility for the children's cultural education whilst in their care. The Independent Children's Lawyer was discharged, and all other outstanding applications were dismissed.

Orders