Eccleston & Eccleston (No 2) - [2022] FedCFamC2F 45

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eccleston & Eccleston (No 2) [2022] FedCFamC2F 45

File number(s): MLC 1249 of 2020

Judgment of: JUDGE BOYMAL

Date of judgment: 25 January 2022

Catchwords: FAMILY LAW – Parenting – parental responsibility – live with and spend time arrangements – change of residence to father.

Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68Q

Cases cited:
Grella & Jamieson [2017] FamCAFC 21

In the marriage of Hall and Hall [1979] FLC 90-713

Marvel & Marvel (No. 2) [2010] FamCAFC 101

McCall & Clark [2009] FamCAFC 92

Oberlin & Infeld [2021] FamCAFC 66

Oscar & Traynor [2008] FamCA 95

Oscar & Traynor [2008] FamCAFC 158

Division: Division 2 Family Law

Number of paragraphs: 369

Date of hearing: 21, 22 and 23 June 2021

Place: Melbourne

Counsel for the Applicant: Ms McCreadie

Solicitor for the Applicant: Lander & Rogers

Solicitor for the Respondent: James McConvill & Associates
ORDERS

MLC 1249 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ECCLESTON

Applicant

AND:
MS ECCLESTON

Respondent

order made by:

JUDGE BOYMAL

DATE OF ORDER:

25 january 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.

Parental Responsibility
2.The father have sole parental responsibility in respect of all major long term issues for X born in 2016 provided that prior to making the sole ultimate decision about any issue:
(a)the father shall contact the mother in writing (email) and provide his views about any such issue;
(b)the mother may reply in writing to the father’s proposal within 14 days of receipt of same;
(c)should the mother respond then the father shall consider the mother’s views and opinions and advise the mother within a further 7 days of his decision in writing; and
(d)this limitation on time shall not apply if there is a question of emergency in which case the father has the sole parental responsibility in such circumstances.

Live with
3.X live with the father.
4.The father collect X from the childcare facility at the 5^th Floor, Commonwealth Law Courts, 305 William Street, Melbourne, Victoria after the delivery of these orders.
5.The mother, her servants and agents, be and are hereby restrained from attending at the childcare facility at the 5^th Floor, Commonwealth Law Courts, 305 William Street, Melbourne, Victoria after the delivery of these orders.
6.The mother, her servants and agents, immediately leave the premises of the Commonwealth Law Courts, 305 William Street, Melbourne, Victoria after the delivery of these orders.

Spend time and Communication
7.From the date of these orders until the second weekend of the first term school holiday period 2022 at D School:
(a)X spend no physical face to face time with the mother;
(b)X communicate with the mother via electronic communication by way of audio calls (or video calls at the discretion of the father) each Sunday between 9.30am and 10.00am, each Wednesday between 5.00pm and 5.30pm and at the conclusion of X’s first day at school,…

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 Eccleston & Eccleston (No 2)

Details

AGLC: Eccleston & Eccleston (No 2) [2022] FedCFamC2F 45
Case: [2022] FedCFamC2F 45
Decision Date

CaseChat Overview and Summary

This is a parenting case between the father and mother of a young child, X. The Court found in favour of the father in relation to final parenting orders. The Court found that X should live with the father and that the father should have sole responsibility for major long term issues. The Court found that it was in X's best interests to spend time with the mother, but only after a period of adjustment. The Court also made a suite of ancillary and consequential orders. The Court found that the mother had entrenched negative views of the father, which were detrimental to X. The Court found that the mother had failed to address those views or change her conduct, and that it would take a lengthy period of time for her to do so. The Court found that the father had a positive attitude towards X and was able to provide for her emotional needs. The Court found that it was in X's best interests to have a meaningful relationship with both parents, and that the only way to ensure that would be if X lived with the father. The Court found that the mother had failed to consult with the father in relation to X's education, and that the mother had failed to comply with an existing order for equal shared parental responsibility. The Court found that the mother's failure to address her views of the father would inevitably lead to further litigation. The Court found that the father would be able to provide X with a secure foundation for a sufficient period of time to recuperate with him between the times she spends with the mother. The Court found that the mother had failed to recognise her deficiencies in parenting, and that there was no utility in compelling her to engage in therapeutic intervention. The Court found that the mother's views of the father and her conduct would continue to place X at risk of detriment to her emotional and psychological well-being. The Court found that the mother would continue to thwart X spending extended, ongoing and reliable time with the father and that the mother would not meaningfully engage, if engage at all, in individual psychotherapy to address her attitude to the father so that a more co-operative parenting arrangement between the parents can occur.

Orders