Dawson and Wright (No. 2) - [2018] FamCA 862

FAMILY COURT OF AUSTRALIA

DAWSON & WRIGHT (NO. 2)

[2018] FamCA 862

FAMILY LAW – CHILDREN – Parenting – Residence Dispute – Where the court is satisfied that children will not be able to have a relationship with their father without a drastic change – Where the mother does not give the court confidence that any change can successfully occur – Where change of residence is the only option left despite opposition expressed by the children.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

CDJ & VAJ (1998) 197 CLR 172
Darley and Darley [2016] FamCAFC 10
Dawson & Wright [2017] FamCA 1029
Dawson & Wright [2018] FamCA 266
P & D [2001] FamCA 1197
Re: David (1997) FLC 92-776

APPLICANT:

Ms Dawson

RESPONDENT:

Mr Wright

INDEPENDENT CHILDREN’S LAWYER:

White Cleland

FILE NUMBER:

MLC

6838

2014

DATE DELIVERED:

29 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20, 23-24 April 2018 and
17-19 September 2018

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

White Cleland

Orders

All extant parenting orders are discharged.
Until 31 December 2020, the father have sole parental responsibility for all major long-term decisions relating to the children C (born … 2004) and D (born … 2008) and thereafter, the parents have equal shared parental responsibility.
The children live with their father.
The children spend time with their mother as follows:
(a)       Commencing on Friday 16 November 2018, during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning;
(b)       For school term holidays, from the conclusion of school on the last day of term until 6 pm on the Saturday in the middle of those term holidays; and
(c)       For the long summer holidays:
(i)From the conclusion of school on the last day of the school year until midday on 25 December in each even-numbered year (and 6 pm on 24 December in each odd-numbered year); and
(ii)From 6 pm on 26 December in each even-numbered year (and midday on 25 December in each odd-numbered year) until 6 pm on 11 January in each year.
That the children spend Christmas as follows:
(a)       From Christmas Eve until midday on Christmas Day in each even-numbered year with their mother;
(b)       From midday on Christmas Day in each even-numbered year until 6 pm on Boxing Day with their father;
(c)       From 6 pm on Christmas Eve to midday on Christmas Day in each odd-numbered year with their father; and
(d)       From midday on Christmas Day in each odd-numbered year until 6 pm on Boxing Day with their mother.
For the purposes of paragraph 4 (a) of these orders, the mother (or her agent) is to collect the children from their school(s) on the Friday and return them to their school(s) on the Monday morning (or if the Monday is a public holiday, the…

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 Dawson and Wright (No. 2)

Details

AGLC: Dawson and Wright (No. 2) [2018] FamCA 862
Case: [2018] FamCA 862
Decision Date: 29 October 2018

CaseChat Overview and Summary

In *Dawson and Wright (No. 2)*, Cronin J considered parenting orders concerning two children, C and D. The dispute involved the father's application and the mother's response, with the court ultimately discharging all extant parenting orders and making new arrangements for the children's care and parental responsibility.

The court was required to determine the appropriate parenting arrangements for the children, including issues of parental responsibility for long-term decisions, the children's residence, and the time they would spend with each parent. The court also had to consider the admissibility and weight of the evidence presented by both parties, particularly in light of the Family Law Act 1975 (Cth) and the Evidence Act 1995 (Cth), and the mother's history as a litigant in the court.

Cronin J applied principles of family law to determine the best interests of the children, considering the evidence presented by both parents. The judge found the father's evidence to be plausible and consistent, while noting that complaints about his parenting were not significant and an accusation of sexual impropriety was implausible. The mother, despite her assertions of unfamiliarity with federal courts, was found to be well-prepared and made forensic decisions regarding her case presentation. The court ultimately ordered that the father have sole parental responsibility for major long-term decisions until a specified date, after which equal shared parental responsibility would apply. The children were ordered to live with their father, with specific arrangements for their time with their mother, including during school holidays and Christmas.

The court discharged all extant parenting orders and the order appointing the Independent Children's Lawyer. The mother's application and the father's response were otherwise dismissed, save for issues of costs. New orders were made regarding parental responsibility, residence, time spent with each parent, communication, and the father's authority to obtain passports for the children without the mother's consent. The father was also directed to engage with a counsellor to assist the children in adjusting to the orders.

Orders

Orders of the court

All extant parenting orders are discharged.

Until 31 December 2020, the father have sole parental responsibility for all major long-term decisions relating to the children C (born … 2004) and D (born … 2008) and thereafter, the parents have equal shared parental responsibility.

The children live with their father.

The children spend time with their mother as follows:

(a) Commencing on Friday 16 November 2018, during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning;

(b) For school term holidays, from the conclusion of school on the last day of term until 6 pm on the Saturday in the middle of those term holidays; and

(i) From the conclusion of school on the last day of the school year until midday on 25 December in each even-numbered year (and 6 pm on 24 December in each odd-numbered year); and

(ii) From 6 pm on 26 December in each even-numbered year (and midday on 25 December in each odd-numbered year) until 6 pm on 11 January in each year.

That the children spend Christmas as follows:

(a) From Christmas Eve until midday on Christmas Day in each even-numbered year with their mother;

(b) From midday on Christmas Day in each even-numbered year until 6 pm on Boxing Day with their father;

(d) From midday on Christmas Day in each odd-numbered year until 6 pm on Boxing Day with their mother.

For the purposes of paragraph 4 (a) of these orders, the mother (or her agent) is to collect the children from their school(s) on the Friday and return them to their school(s) on the Monday morning (or if the Monday is a public holiday, the Tuesday morning).

For the purposes of paragraph 4 (b) the mother (or her agent) is to collect the children from the school when the term concludes and return them to the father at the conclusion of the relevant period to the residence of the father.

For the purposes of paragraph 4 (c), the mother (or her agent) is to collect the children from the school and deliver them to the father’s residence at the commencement of the father’s Christmas period (more specifically defined in paragraph 5) and at the conclusion of the father’s Christmas time, he shall deliver the children to the mother at her residence.

For the purposes of paragraph 4 (b) and (c), during all term and long summer holidays, the alternate weekend time referred to in paragraph 4 (a) is suspended and shall resume during the new or next term as if it had not been interrupted by the long summer holidays.

10.

From Wednesday 14 November 2018, the children have electronic communication with their mother each Wednesday night at 7 pm whilst they are in their father’s care and similarly, have electronic communication with their father each Wednesday night whilst they are in their mother’s care and the parent responsible for the care of the children at the relevant time facilitate such communication.

11.

That notwithstanding paragraph 2, the father authorise the principal of the children’s school(s) to permit the mother to participate in all activities designated for parents and receive such information as the school might provide parents NOTING AT ALL TIMES that the provisions of this specific order always remains the prerogative of the relevant school principal.

12.

The father is to engage with a suitably qualified counsellor within the father’s community area, recommended by the Family Consultant, for the purposes of assisting the children to adjust to these orders and to the extent necessary, the father is to authorise that professional to obtain information and assistance from the mother.

13.

Notwithstanding paragraph 2, the father is authorised to obtain passports for the children without the written consent of the mother.

14.

The order appointing the Independent Children’s Lawyer is discharged.

15.

That, save as to issues of costs, the application of the mother filed 21 February 2018 and the response of the father filed 7 March 2018 are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I have done the best I can to sift through what the parties presented. Whilst Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) has ameliorated the relatively strict approach to the presentation of evidence[1] so that the Court can better focus on the needs of children, ss 55 and 56 of the Evidence Act 1995 (Cth) (“the Evidence Act”) are still important. Those two provisions say:[1] In this case, I initially ordered the rules of evidence should apply. It was a difficult task for the parties to follow that ruling and accordingly, the direction was not always strictly enforced.55 Relevant evidence(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2) In particular, evidence is not taken to be irrelevant only because it relates only to:(a) the credibility of a witness; or(b) the admissibility of other evidence; or(c) a failure to adduce evidence.56 Relevant evidence to be admissible(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.(2) Evidence that is not relevant in the proceeding is not admissible. In the process of trying to discern the facts, I have had the benefit of reading the mother’s affidavit filed 7 March 2018 even though she did not rely upon it in her outline of case document, because it was to that document, the father responded. Without reading that evidence, the narrative was meaningless. The presented as organised, emotionally contained and respectful. His ability to describe what had happened was sound. He made appropriate concessions where necessary. His overtly-expressed frustrations about what he had endured to maintain a relationship with the children were palpable, but in my view, understandable. The complaints about the father’s parenting were not significant. An accusation of sexual impropriety against him was, at best, implausible and at worst, insignificant. Nothing about his evidence appeared untruthful. Whilst the mother asserted to the father on several occasions that he had “no proof” of what he was saying (and by which I understood her to mean no corroboration), his evidence was entirely plausible and consistently so. Although the mother maintains she has no experience with the “federal courts” and seems now mostly involved in policy issues in her employment, she impressed as well-prepared for the Court hearing. The mother cross-examined in a logical way, showing clear thought patterns of where she wanted to go (even if some of the issues of her focus were irrelevant). When she was criticised for not having factual material for the Court about what had happened to the children after April 2018, she maintained she misunderstood what she was asked to do by counsel for the Independent Children’s Lawyer. Yet, she had prepared a final address that was very targeted and considered. I do not accept that she did not understand the significance of presenting facts; she certainly had the father’s documents and was prepared to challenge the things he said. Generally, she did not put her versions of facts when she had the opportunity to cross-examine both the father and his wife. I consider she made the forensic decision to conduct the case the way she did. I have no doubt she understood the way court cases were conducted. She has been a regular litigant in this Court for over four years.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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