Ewart & Wilton - [2021] FedCFamC2F 242

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ewart & Wilton [2021] FedCFamC2F 242

File number: AYC 250 of 2013

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 25 October 2021

Catchwords: FAMILY LAW – Final parenting – which parent child should live with – relocation – where mother seeking to relocate to New Zealand – where mother says she will relocate with or without child – best interests of child – inability to co-parent.

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

Cases cited: Cox & Pedrana (2013) FLC ¶93-537
Fox v Percy (2003) 214 CLR 118
Hamish & Brighton (2014) FLC ¶93-624
Morden & Coad [2019] FamCAFC 233
Oswald & Karrington (2016) FLC ¶93-726
Sayer & Radcliffe 48 Fam LR 298 [2012] FamCAFC 209
Ulster & Viney (2016) FLC ¶93-722

Division: Division 2 Family Law

Number of paragraphs: 239

Date of last submissions: 13 June 2021

Date of hearing: 10-14 May 2021 and 3-4 June 2021

Place: Melbourne

Counsel for the Applicant: Ms B Lane

Solicitor for the Applicant: Armstrong Legal

Counsel for the Respondent: Mr J Hall

Solicitor for the Respondent: KPW Lawyers

Counsel for the Independent Children's Lawyer: Ms S Mariole

Solicitor for the Independent Children's Lawyer: Robindale Legal
ORDERS

AYC 250 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR EWART

Applicant Father

AND:
MS WILTON

Respondent Mother

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

8 JULY 2021

THE COURT ORDERS THAT:
1.All previous parenting orders regarding X born in 2008 (“X” or “the child”) be discharged.

Live with the Father
2.The child live with the Father from 11.00am on Sunday 11 July 2021, with the Mother to provide the child with her New Zealand passport, and changeover occur at McDonalds City B Shopping Centre.
3.From 22 July 2021, the child spend time with the Mother from after school Thursday until the commencement of school Monday, and each alternate week thereafter pending the Mother’s relocation to New Zealand and noting the child will be attending C School. .

Parental Responsibility
4.The Father have sole parental responsibility for all health and education issues relating to the child, and when the Father is required to make a decision of a long-term nature, except for in an emergency, he shall do the following:
(a)inform the Mother in a timely manner of his proposed decision;
(b)consider any input from the Mother in a timely manner in relation to the proposed decision;
(c)make his decision in a timely manner; and
(d)advise the Mother of that decision, with the Father to have the ultimate decision.

5.The parties have equal shared parental responsibility for long term decisions that are not health or education decisions.

School Holiday Time
6.During school holiday periods, the child spend time with each of the parents as follows:
(a)Term 1 holidays, commencing 2021 and each alternate year thereafter:
(i)With the Mother, from after school on the last day of Term 1 to 4pm on the middle Friday.
(ii)With the Father, from…

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 Ewart & Wilton

Details

AGLC: Ewart & Wilton [2021] FedCFamC2F 242
Case: [2021] FedCFamC2F 242
Decision Date

CaseChat Overview and Summary

This case involved a dispute between the parents of a 13-year-old child, X, regarding the child's residence and contact arrangements. The parents, Mr Ewart and Ms Wilton, were seeking different outcomes for X, with Ms Wilton seeking to relocate to New Zealand with or without X, while Mr Ewart sought for X to remain in Australia. The court had to determine which parent X should live with and what contact arrangements should be made between X and the non-residential parent. The court considered the best interests of X, as outlined in the Family Law Act 1975, and took into account the evidence presented by both parents, their respective partners, and other witnesses. The court found that the Father was more likely to promote the child's relationship with the Mother, and that living in Australia with the Father would be less disruptive for X, considering her existing friendships and the need for stability in her life. The court also considered the capacity of each parent to provide for the child's emotional and intellectual needs, and the potential for psychological harm to the child in either household. Based on these considerations, the court ordered that X should live with the Father in Australia and spend time with the Mother during school holidays in New Zealand. The court also ordered that the Father have sole parental responsibility for long-term issues, subject to the obligation to consult the Mother before making any such decision.

Orders