DACEY & DACEY - [2019] FCCA 1189

FEDERAL CIRCUIT COURT OF AUSTRALIA

DACEY & DACEY

[2019] FCCA 1189

Catchwords:
FAMILY LAW – Parenting – four children –two older children live with father in Darwin – two younger children live with mother in Brisbane – risk concerns in both households – where father will not return to Brisbane – where mother cannot move to Darwin – where parties and siblings not likely to spend time with other siblings whilst children are separated – where father seeking all children live with father in Darwin as mother poses risk to children due to mental health issues – where mother is not seeking for two older children to live with mother but to return to Brisbane to spend time with mother and younger siblings – where mother is seeking coercive order for father to relocate to Brisbane – where ICL seeking order older children be placed in care of State should father not return – Held in children’s best interest for older children to live with father and younger children to live with mother and spend time as agreed with parties to have sole parental responsibility for the children in their care.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 61DA, 65DAA, Pt VII

Cases cited:

Adamson & Adamson (2014) FLC93-622
Farmer & Rogers [2010] FamCAFC 253
Hardie & Capris [2010] FamCA 1046
Johnson & Johnson (2000) 201 CLR Re F Litigants In Person Guidelines [2001] FamCA 348
Mazorski v Albright (2007) 37 Fam LR
Moose & Moose [2008] FamCAFC 108
MRR v GR (2010) 263 ALR
Oswald & Karrington [2016] Fam CAFC 132
Sampson & Hartnett(No.10) [2007] FamCA 1365

Applicant:

MS DACEY

Respondent:

MR DACEY

File Number:

BRC 9036 of 2015

Judgment of:

Judge L. Turner

Hearing dates:

25 September 2018, 26 September 2018

Date of Last Submission:

15 January 2019

Delivered at:

Brisbane

Delivered on:

22 May 2019

REPRESENTATION

Counsel for the Applicant:

Ms Dart

Solicitors for the Applicant:

Legal Aid Queensland

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Mr Baston

Solicitors for the Independent Children's Lawyer:

Feeney Family Law

FINAL PARENTING ORDERS

All previous parenting orders and parenting plans made before 25 September 2018 are hereby discharged.
These orders be read in conjunction with the final parenting orders made by consent on 25 September 2018.
The children [X] born … 2005 and [Y] born … 2005 live with the father.
The father have sole parental responsibility for [X] and [Y].
The mother spend time with [X] and [Y] as agreed upon between the parties.
The children [W] born … 2008 and [Z] born … 2010 live with the mother.
The mother have sole parental responsibility for [W] and [Z].
The father spend time with [W] and [Z] as agreed upon between the parties.
The father shall not physically discipline the children.
The independent children’s lawyer is hereby discharged.

IT IS NOTED that publication of this judgment under the pseudonym Dacey & Dacey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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.

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Details

AGLC: DACEY & DACEY [2019] FCCA 1189
Case: [2019] FCCA 1189
Decision Date: 22 May 2019

CaseChat Overview and Summary

The case of *Dacey & Dacey* concerned a dispute between a father and mother regarding the living arrangements for their four children. The two older children resided with the father in Darwin, while the two younger children lived with the mother in Brisbane. Both parties raised concerns about the safety of the children in the other's household, with the father alleging the mother posed a risk due to mental health issues. The father sought orders for all four children to live with him in Darwin, while the mother sought for the older children to return to Brisbane to live with her and spend time with their younger siblings, and also sought a coercive order for the father to relocate to Brisbane. The Independent Children's Lawyer (ICL) recommended that the older children be placed in the care of the State if the father did not return to Brisbane. The proceedings were heard by L. Turner J.

The primary legal issues before the court were: (1) determining the best interests of the four children in relation to their living arrangements, considering the geographical separation of the parents and the risk concerns raised in each household; (2) deciding whether the older children should live with the father in Darwin or be placed in State care; (3) determining whether the younger children should live with the mother in Brisbane; and (4) considering the mother's application for a coercive order requiring the father to relocate to Brisbane.

L. Turner J found that it was in the best interests of the older children to live with the father in Darwin and for the younger children to live with the mother in Brisbane. The court reasoned that the existing arrangements, while separated, were preferable to the proposed alternatives given the specific circumstances and risk factors identified. The court also determined that the parties should have sole parental responsibility for the children in their respective care. The mother's application for a coercive order for the father to relocate was not granted.

Orders