Donney & Howard - [2022] FedCFamC1F 79

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Donney & Howard [2022] FedCFamC1F 79

File number(s): MLC 2890 of 2021

Judgment of: BENNETT J

Date of judgment: 21 February 2022

Catchwords:
FAMILY LAW – PARENTING – need to accord the child respect in parenting proceedings.

FAMILY LAW – PARENTING – where there are complex parenting proceedings about a child (11 years old) – where this is the third major parenting proceedings concerning the child since child was 1 year old – where parents agree on an outcome.

FAMILY LAW – PARENTING – where independent children’s lawyer required to inform child of orders which parents propose be made – where child’s view of resolution was taken into account as an additional consideration.

FAMILY LAW – PARENTING –when seeking final parenting orders be made by consent, independent children’s lawyer should give prior consideration to whether it is appropriate or desirable for the child to be informed of the proposed resolution, which has been finally agreed between the parties, before orders are sought to be made by consent. Whether the judge can be informed of the child’s view of the proposed resolution. How a child affected by an order is to be informed of the order having been made and how the order will operate.

Cases cited: Bryce & Bryce [2020] FamCA 653

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 12 January 2022

Place: Melbourne (via Ms Teams)

Counsel for the Applicant: Ms Bowen

Solicitor for the Applicant: Clancy and Triado

Counsel for the Respondent: Mr Heggie

Solicitor for the Respondent: Sage Family Lawyers

Counsel for the independent children’s lawyer: Dr Alexander

Solicitor for the independent children’s lawyer: Creative Family Law Solutions
ORDERS

MLC 2890 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DONNEY

Applicant

AND:
MS HOWARD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

12 JANUARY 2022

BY CONSENT THE COURT ORDERS THAT:
Procedural
1.All previous parenting orders, including the final parenting orders dated 5 September 2012 and 4 February 2015, be and are hereby discharged.
2.The independent children’s lawyer (“ICL”) be discharged within 28 days of the date of this Order.

Decision making
3.The parties have equal shared parental responsibility in relation to the child X born in 2010.

Living arrangements and communication
4.X live with the Mother and the Father respectively, on an equal shared care basis as follows:
(a)With the Mother for the remainder of the 2021/2022 long summer holidays until 8.30am Monday 31 January 2022;
(b)During school terms:
(i)Each week from the conclusion of school on Monday (or 8.30am if a non-school day) until the commencement of school on Wednesday (or 8.30am if a non-school day) with the Mother;
(ii)Each week from the conclusion of school on Wednesday (or 8.30am if a non-school day) until the commencement of school on Friday (or 8.30am if a non-school day) with the Father;
(iii)Commencing on Friday 04 February 2022, each alternate weekend from the conclusion…

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 Donney & Howard

Details

AGLC: Donney & Howard [2022] FedCFamC1F 79
Case: [2022] FedCFamC1F 79
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, in a case between Mr Donney and Ms Howard, addressed a complex matter concerning parenting arrangements for their 11-year-old child, X. This was the third major parenting proceeding since the parents' separation in 2011 when X was one year old. The court was required to decide whether the child should be informed of the parents' agreed resolution before consent orders were sought. The legal issue centered on whether it was appropriate to inform the child of the proposed resolution and how to effectively communicate the court's decision to the child.

Justice Bennett concluded that children must be accorded respect in such proceedings, which may include informing them of the basis upon which the parents agree to resolve the proceedings. The Independent Children's Lawyer was directed to inform X of the proposed resolution and report back to the court on the child's response. The court emphasized the importance of considering whether it is appropriate for the child to be informed of the proposed resolution, how the judge can be informed of the child's view, and how the child should be informed of the order and its operation. The court stressed that this should be done in a way that is not burdensome to the child but ensures they are respected and understand the process. The final orders were made by consent, detailing living arrangements, communication, education, medical and allied health, and travel provisions.

Orders