Dornom & Fielden - [2021] FedCFamC1F 272

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dornom & Fielden [2021] FedCFamC1F 272

File number(s): BRC 9238 of 2020

Judgment of: JUSTICE JARRETT

Date of judgment: 17 November 2021

Catchwords: FAMILY LAW – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – parenting orders – assessment of competing proposals.

Legislation:
Family Law Act 1975 (Cth), ss 4, 4AB, 4AB(2), 4AB(2)(i), 60B, 60CC, 60CC(3), 60CC(3)(a), 60CC(3)(d), 61DA, 62G, 65DAC(2), 65DAC(3)

Cases cited:
Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam)

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

U v U (2002) 211 CLR 238

Division: Division 1 First Instance

Number of paragraphs: 42

Date of last submission/s: 17 November 2021

Date of hearing: 16 & 17 November 2021

Place: Brisbane

Counsel for the Applicant: Ms Earl

Solicitor for the Applicant: Redhill Legal

Counsel for the Respondent: Mr Casey

Solicitor for the Respondent: Gary Rolfe Solicitors

Counsel for the Independent Children’s Lawyer Mr Taylor

Solicitor for the Independent Children’s Lawyer C M Bint Family Lawyers
ORDERS

BRC 9238 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DORNOM
Applicant

AND:
MR FIELDEN
Respondent

ORDER MADE BY:

JUSTICE JARRETT

DATE OF ORDER:

17 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The applicant have sole parental responsibility for decisions concerning the major long-term issues of X born …, 2010.
2.Except in the event of an emergency, the applicant is to consult the respondent about decisions to be made in the exercise of her sole parental responsibility on the following basis:
(a)the applicant will give the respondent in writing details of the decision that needs to be made, what decision she proposes to make and the reasons why she proposes the decision be made in a particular way;
(b)the respondent will respond to the applicant, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice;
(c)the applicant will consider any feedback given by the respondent by reference to the best interests of X/children;
(d)the applicant will inform the respondent, in writing, within 7 days of the decision she has made.

3.X shall live with the applicant.
4.X shall spend time with the respondent as agreed but failing agreement as follows:
(a)commencing no earlier than 2 months following the making of these orders, from 9am to 3.00pm each Saturday for 4 visits;
(b)thereafter for 4 visits, each alternate weekend from 9.00am Saturday to 5.00pm Sunday;
(c)thereafter for 4 visits, each alternate weekend from after school Friday to 5.00pm Sunday; and
(d)thereafter:
(i)each alternate weekend from after school Friday to before school Monday; and
(ii)for one half of each school holiday period being the first half in holidays commencing in even numbered years and the second half in holidays commencing in odd numbered years with such time to include Christmas Day as it falls.

5.Unless otherwise agreed or provided for in these orders, changeover shall occur as follows:
(a)when changeover occurs on a…

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 Dornom & Fielden

Details

AGLC: Dornom & Fielden [2021] FedCFamC1F 272
Case: [2021] FedCFamC1F 272
Decision Date

CaseChat Overview and Summary

Dornom and Fielden are the parents of X, who was born in 2010. The Federal Circuit and Family Court of Australia was tasked with determining the parenting arrangements for X. The Court had to decide the incidence of parental responsibility, where X would live, and with whom X would spend time and communicate. The Court had to consider the best interests of X as the paramount consideration and assess the relevant factors outlined in section 60CC of the Family Law Act 1975. The Court also had to determine if there had been a significant change in circumstances to warrant revisiting the welfare of X and the orders made in 2014.

The Court found that there had been a significant change in circumstances, represented by a change in the attitudes of the parents. The Court determined that an equal time arrangement could work, all other things being equal. The Court found that the father had perpetrated family violence within the definition set out in section 4AB of the Act towards X. The Court also found that the parties had very little capacity to cooperatively parent their son and they were apt to do things unilaterally. The Court decided that sole parental responsibility ought to be provided to the parent with whom X will live most of the time. The Court concluded that X should live with his mother for most of the time to give him the best opportunity to restore and enjoy a relationship with his mother as he should have without cost to his relationship to his father. The Court decided that a moratorium of two months should be imposed before X spends time with his father, and the reintroduction of time should be gradual.

The Court made various orders concerning the incidence of parental responsibility, where X would live, and with whom X would spend time and communicate. The Court also made orders to restrict the parties from using illicit drugs while caring for X, to communicate using an online parenting application, and to limit communication during times that X is in the other party's care. The Court further made orders to restrain the parties from making derogatory comments about the other party to X, discussing these proceedings with X, and discussing any matters of disagreement between them with X.

Orders