Dorn & Dorn - [2023] FedCFamC2F 350

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dorn & Dorn [2023] FedCFamC2F 350

File number(s): PAC 1604 of 2021

Judgment of: JUDGE OBRADOVIC

Date of judgment: 30 March 2023

Catchwords:
FAMILY LAW – Final parenting – Parental responsibility – Whom the child lives with – Whom the child spends time with – Allegations of violence –Mental health – Risk to the child of psychological harm – Difficulties communicating between parents

FAMILY LAW – Costs – Oral application by Independent Children’s Lawyer – Parties opted not to make submissions

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

Cases cited:
Banks & Banks [2015] FamCAFC 36

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 93

Date of last submission/s: 15 September 2022

Date of hearing: 14-15 September 2022

Place: Parramatta

Counsel for the Applicant: Mr Liedermann

Solicitor for the Applicant: Bridges Lawyers

Counsel for the Respondent: Mr Bithrey

Solicitor for the Respondent: LMC Lawyers

Appearing for the Independent Children's Lawyer: Mr Bourne

Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers
ORDERS

PAC 1604 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DORN

Applicant

AND:
MS DORN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

30 MARCH 2023

THE COURT ORDERS THAT:
1.The parties shall have equal shared parental responsibility for X born 2017.
2.X shall live with the mother.
3.X shall spend time with the father as agreed between the mother and father or failing agreement:
(a)During school term, each alternate weekend from after school or if a non-school day then from 5pm Friday until 5pm Sunday;
(b)During school term, each Wednesday from after school or if a non-school day then from 6pm until the commencement of school the following day, or if a non-school day then 9am;
(c)On Father’s Day weekend from 1pm on the Saturday immediately before Father’s Day until 5.00pm on Sunday/Father’s Day;
(d)In odd numbered years from 1pm on Christmas Eve until 1pm on Christmas Day;
(e)In even numbered years from 1pm on Christmas Day until 1pm on Boxing Day;
(f)In even numbered years from 9am Good Friday until 9am Easter Sunday;
(g)In odd numbered years from 9am Easter Sunday until 5pm Easter Monday;
(h)On the Father’s birthday from 9am until 5pm, or if a school day, then from the conclusion of school until the commencement of school, or 9am if a non-school day the following day;
(i)Effective from when X commences school: Term 1, 2 and 3 school holidays, the first week in odd numbered years and the second week in even numbered years;
(j)Effective from when X commences school: Term 4 school holidays a week about, commencing the first week in odd numbered years and the second week in even numbered years;
(k)Effective from 2025, Term 4 school holidays a two week period rotation commencing…

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 Dorn & Dorn

Details

AGLC: Dorn & Dorn [2023] FedCFamC2F 350
Case: [2023] FedCFamC2F 350
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was asked to determine the parenting arrangements for X, born in 2017, the child of the parties. The father, Mr Dorn, sought orders that X live with him and spend time with the mother. The mother, Ms Dorn, sought orders that the parents have shared parental responsibility and that X live with her and spend time with the father. The Independent Children's Lawyer sought orders that the parents have shared parental responsibility, that X live with the mother and spend time with the father, and that the parents each pay half of the ICL's costs. The central issue for the Court was to determine the outcome that would be best for X. The Court considered the matters set out in s.60CC of the Family Law Act 1975 (Cth), and applied the presumption of equal shared parental responsibility under s.61DA of the Act. The Court found that X had a meaningful relationship with each of his parents, and that X's mother had the greater capacity, compared to the father, to meet X's emotional needs. The Court found that an order for X to live with his mother and spend time with his father in accordance with the mother's application was in X's best interest, and that an order for equal shared parental responsibility was appropriate. The Court also found that an order for equal time was not supported by the evidence. The Court declined to make most of the parties' proposed restraints, but made limited restraints in respect of discussing the proceedings and denigration of the other parent. The Court ordered that each party pay half of the ICL's costs.

The orders of the Court were that the parties shall have equal shared parental responsibility for X; X shall live with the mother; X shall spend time with the father as agreed between the mother and father or failing agreement on certain specified occasions; and that each party pay half of the ICL's costs.

Orders