Connelly & Wilshire - [2022] FedCFamC2F 928

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Connelly & Wilshire [2022] FedCFamC2F 928

File number(s): NCC 1252 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 18 July 2022

Catchwords: FAMILY LAW – parenting – whether to change existing ‘equal time’ for 7-year-old twins – escalating parental conflict – poor co-parenting – competing residence applications – mental health concerns – potential ongoing inability to support children’s emotional needs – sole parental responsibility appropriate – regular time rather than ‘equal time’ – best interests of children

Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Mazorski & Albright [2007] FamCA 520

MRR & GRR [2010] HCA 4

Division: Division 2 Family Law

Number of paragraphs: 234

Date of hearing: 8-9 June 2022

Place: Newcastle

Counsel for the Applicant: Ms L Ticehurst

Solicitor for the Applicant: Landmark Legal

Solicitor for the Respondent: self-represented litigant
ORDERS

NCC 1252 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CONNELLY

Applicant

AND:
MR WILSHIRE

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

18 JULY 2022

THE COURT ORDERS THAT:
1.The applicant, MS CONNELLY (‘the mother’) shall have sole parental responsibility for X born in 2015 and Y born in 2015 (‘the children’).
2.The children shall live with the mother.
3.The respondent, MR WILSHIRE (‘the father’) shall spend time with the children during school terms as exercised by the children’s school (‘school term-time’) for three consecutive nights from the conclusion of school (or 3:00pm) on alternate Fridays until the commencement of school the following Monday (or if the Monday is a public holiday, until the time that school would normally conclude) commencing on Friday 5 August 2022.
4.The children shall spend time with the parties in school holiday periods as exercised by the children’s school as may be agreed in writing between the parties, but failing agreement as follows:
(a)During the Autumn, Winter and Spring school holidays
(i)In 2022 and each alternate year –
·With the mother from 12:00 noon on the first Sunday until 12:00 noon on the second Sunday;
·With the father from 12:00 noon on the second Sunday until 12:00 noon on the third Sunday;

(ii)In 2023 and each alternate year –
·With the father from 12:00 noon on the first Sunday until 12:00 noon on the second Sunday;
·With the mother from 12:00 noon on the second Sunday until 12:00 noon on the third Sunday.

(b)During the Summer school holidays:-
(i)In 2022 and each alternate year –
·With the mother commencing from the conclusion of the children’s school term and concluding at 12:00 noon eight (8) days later and alternating thereafter;
·With the father commencing from 12:00 noon on the eighth day after the children’s school term ceases and concluding eight (8) days later and alternating thereafter;

(ii)In 2023 and each alternate year –
·With the father commencing from the conclusion of the children’s school term and concluding at 12:00…

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 Connelly & Wilshire

Details

AGLC: Connelly & Wilshire [2022] FedCFamC2F 928
Case: [2022] FedCFamC2F 928
Decision Date

CaseChat Overview and Summary

Connelly & Wilshire was a parenting case before Judge Kearney in the Family Court of Australia. The parents of two 7-year-old girls, X and Y, had been separated for four years. Both parents had proposed different arrangements for the children to live with them and spend time with the other parent. The mother proposed that the children live with her and spend time with the father for three nights a fortnight during school terms and five consecutive nights during alternate weeks of the school holidays. The father's proposal was more complex. In the interim, the children were to live with the father and spend time with the mother for four nights a fortnight. However, if the mother obtained satisfactory psychological support and engaged in co-parenting counselling with the father, then the parties were to have equal shared parental responsibility and the children would spend equal time with each party in the same pattern as at present. The court found that the father had committed family violence against the mother, and that the mother had not adequately quarantined the children from the parental conflict. The court found that the father had failed to address his mental health issues and had demonstrated an inability to appropriately regulate his emotions. The court found that the father's poor attitude towards the children and the responsibilities of parenthood was demonstrated by a pattern of disregard for their emotional needs. The court found that the father's poor attitude was not evident from the mother's more recent transgression in June 2022. The court found that the children will be able to adjust to the change in circumstances with the support of the adults in their lives. The court found that the children will continue to have a meaningful relationship with the father, but that the risk of harm posed by him needed to be ameliorated by a reduction in overall time spent in his presence. The court found that the children's strong and loving relationships with MS F, AJ and other members of the father's household and his extended family will endure given the regular time and communication the children will continue to have with the father and members of his household. The court ordered that the mother have sole parental responsibility for the children and that the children live with her. The court ordered that the children spend three nights a fortnight with the father during school terms and five consecutive nights with the father each alternate week of the school holidays.

Orders