Croft and Croft (No. 2) - [2014] FamCA 776

FAMILY COURT OF AUSTRALIA

CROFT & CROFT (NO. 2)

[2014] FamCA 776

FAMILY LAW – CHILDREN – Interim parenting – With whom a child lives – Best interests of child – Where mother and father lived in close proximity – Where there is a complex care regime – Equal shared parenting arrangement where communication is poor

Family Law Act 1975 (Cth) ss 60CA, 60CC

Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

APPLICANT:

Ms Croft

RESPONDENT:

Mr Croft

FILE NUMBER:

PAC

654

2014

DATE DELIVERED:

17 September 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

5 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Rowlandson of Rowlandson & Co

COUNSEL FOR THE RESPONDENT:

Ms Druitt

SOLICITOR FOR THE RESPONDENT:

A R Walmsley & Co

Orders

That the father’s application is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Croft & Croft (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 654 of 2014

Ms Croft

Applicant

And

Mr Croft

Respondent

REASONS FOR JUDGMENT

Introduction

This application concerns N (“the child”) who is 6, the only child of Mr Croft (“ the father”) who is 49 and Ms Croft (“the mother) who is 44.
After the parents separated but remained living in the former matrimonial home, the child was cared for by both of his parents within that home until August 2013. The wife then moved to a house next door to the former matrimonial home and the parents then shared the care of the child within their respective homes.
On 30 June 2014, the day before the mother was to move home she brought an application which was heard on an urgent interim basis and interim parenting orders were made. Under these orders the child lives with his mother and spends time with his father from Friday after school until the commencement of school the following Monday each alternate week and overnight on Tuesday, almost half school holidays and on other special days.
On 5 September 2014, the parties participated in the first day of the Less Adversarial Trial. At the conclusion of those proceedings the father sought to vary the interim orders, so that the child would live with him and the mother under an equal shared care regime. The father’s variation to interim orders is opposed by the mother.
The question for me to determine is whether the father’s proposed orders, the current regime or some other orders meet the child’s best interests.

Background

The child’s parents began living together in 1997 and in November 1998 were married.
The child was born in 2007 and the mother took 12 months maternity leave following his birth to care for him. The father has also been extensively involved in the child’s care and other extended family members such as the paternal…

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 Croft and Croft (No. 2)

Details

AGLC: Croft and Croft (No. 2) [2014] FamCA 776
Case: [2014] FamCA 776
Decision Date: 17 September 2014

CaseChat Overview and Summary

In *Croft and Croft (No. 2)*, the Full Court of the Family Court of Australia considered an appeal by the father against orders made by Hannam J. The dispute concerned parenting arrangements for the parties' child.

The primary legal issue before the Full Court was whether Hannam J had erred in her assessment of the evidence and in applying the relevant principles under the *Family Law Act 1975* (Cth) when making final parenting orders. Specifically, the appeal raised questions about the weight given to certain evidence and the court's consideration of the child's best interests.

The Full Court dismissed the father's application, finding no error in the original decision. The court affirmed that the primary consideration in parenting matters is the best interests of the child. It was held that Hannam J had properly considered all relevant factors and had not misapprehended the evidence. The appeal was therefore dismissed.

Orders

Orders of the court

That the father’s application is 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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