Dover and Dwight and Anor - [2014] FamCA 346

FAMILY COURT OF AUSTRALIA

DOVER & DWIGHT AND ANOR

[2014] FamCA 346

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – fresh proceedings initiated only months after final orders were made – both parties sought changes to the existing orders – physical and sexual abuse allegations made against the father – children primarily attached to the paternal grandmother but have meaningful relationships with the father – mother did not participate in proceedings – no unacceptable risk of harm to the children in the father’s care – children to continue living with the paternal grandmother – frequency of time spent with the father limited by geographic separation

FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility rebutted – completely fractured relationship between paternal grandmother and father – paternal grandmother to have sole parental responsibility for the children

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60AA, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65D, 65DA, 65DAA, 65DAC, 65DAE

Aldridge & Keaton (2009) FLC 93-421

Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Johnson v Page (2007) FLC 93-344
Langmeil & Grange [2013] FamCAFC 31
M v M (1988) 166 CLR 69
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
MRR v GR (2010) 240 CLR 461
Napier & Hepburn (2006) FLC 93-303
Pavli v Beffa (2013) 48 Fam LR 677
Potter & Potter (2007) FLC 93-326
RCB v Forrest & Ors (2012) 247 CLR 304
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363
Valentine & Lacerra (2013) 49 Fam LR 255

APPLICANT:

Ms Dover

1^ST RESPONDENT:

Mr Dwight

2^ND RESPONDENT:

Ms Elwyn

INDEPENDENT CHILDREN’S LAWYER:

GJ Legal Solicitors

FILE NUMBER:

NCC

1426

2011

DATE DELIVERED:

29 May 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

5, 6, 7 & 8 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Priestley

SOLICITOR FOR THE APPLICANT:

Hynes & McCormack

COUNSEL FOR THE 1^ST RESPONDENT:

Mr B Kelly

SOLICITOR FOR THE 1^ST RESPONDENT:

Duncan McLean & Associates

COUNSEL FOR THE 2^ND RESPONDENT:

No appearance

SOLICITOR FOR THE 2^ND RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

GJ Legal Solicitors

Orders

All former orders in respect of the children H Dwight, born … 2008, and R Dwight, born … 2010, (“the children”) are discharged.
The applicant paternal grandmother (“the paternal grandmother”) shall have sole parental responsibility for the children.
The children shall live with the paternal grandmother.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the first respondent father (“the father”) as follows, or as otherwise agreed:
(a)During school terms:
(i)On the third weekend of each term, from 5.00 pm Friday until 5.00 pm Sunday (or Monday if 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 Dover and Dwight and Anor

Details

AGLC: Dover and Dwight and Anor [2014] FamCA 346
Case: [2014] FamCA 346
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered fresh proceedings concerning the living arrangements and parental responsibility for two young children, H Dwight and R Dwight. The proceedings were initiated by the paternal grandmother, Ms Dover, against the father, Mr Dwight, and the mother, Ms Elwyn. The dispute arose only months after final parenting orders were made in March 2013, with both the paternal grandmother and the father seeking to alter the existing orders and gain sole parental responsibility. The mother did not participate in these proceedings.

The court was required to determine with whom the children should live and spend time, and how parental responsibility should be allocated. Central to the determination were allegations of physical and sexual abuse made by the paternal grandmother against the father, which had led to the breakdown of the previous orders. The court also had to consider the children's best interests, including their attachment to their paternal grandmother and their relationships with their father, while assessing any unacceptable risk of harm.

Justice Austin found that the allegations of abuse against the father were not substantiated by the Department of Family and Community Services, and the court did not find an unacceptable risk of harm to the children in the father's care. However, the court noted the completely fractured relationship between the paternal grandmother and the father, and the children's primary attachment to the paternal grandmother, while acknowledging their meaningful relationships with the father. The presumption of equal shared parental responsibility was rebutted due to the acrimonious relationship between the paternal grandmother and the father.

Consequently, the court ordered that the previous final parenting orders be discharged. The paternal grandmother was granted sole parental responsibility for the children, and the children were ordered to live with her. The father was granted specific, albeit geographically limited, time with the children during school terms and holidays, reflecting the distance between their residences. The court also made orders regarding communication between the children and both parents, and imposed restraints on corporal punishment and denigration.

Orders