Eyton & Eyton & Ors - [2013] FamCA 657

FAMILY COURT OF AUSTRALIA

EYTON & EYTON AND ORS

[2013] FamCA 657

FAMILY LAW – CHILDREN – Living arrangements – eldest child to live with paternal grandparents – seven youngest children to live with the mother – eldest child to spend time with the mother and father in accordance with her wishes – seven youngest children to spend substantial and significant time with the father – time spent by the children with the father overnight must occur in the presence of at least one of the paternal grandparents within the paternal grandparents’ home until each child attains the age of ten years – where it was necessary to make orders inconsistent with an apprehended violence order protecting the mother and children from the father.

FAMILY LAW – CHILDREN – Parental Responsibility – presumption of equal shared responsibility in relation to all of the children does not apply due to the incontrovertible evidence of the father’s family violence – equal shared parental responsibility for the eldest child to be shared between the paternal grandparents and the parents – the mother to have sole parental responsibility for the seven youngest children.

FAMILY LAW – CHILDREN – Injunction – parties restrained from allowing the mother’s older son to associate with the children – where the mother’s older son was accused of sexually assaulting some of the children.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65D 65AA, 65DAA, 65DAC, 65DAE, 68P, 69ZK
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Aldridge & Keaton (2009) FLC 93-421
AMS v AIF (1999) 199 CLR 160
Cales & Cales (2010) FLC 93-459
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Malcolm & Monroe & Anor (2011) FLC 93-460
Marriage of L & T (1999) 25 Fam LR 590
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Valentine & Lacerra [2013] FamCAFC 53

APPLICANT:

Mr Eyton

1st RESPONDENT:

Ms Eyton

2nd RESPONDENT:

Mrs Eyton

3rd RESPONDENT:

Mr Eyton Snr

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

FILE NUMBER:

NCC

1804

2012

DATE DELIVERED:

5 September 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

12, 13, & 14 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Murray

SOLICITOR FOR THE APPLICANT:

McNeilly Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Ms Carty

SOLICITOR FOR THE 1ST RESPONDENT:

APJ Law Solicitors

COUNSEL FOR THE 2ND RESPONDENT:

Mr Wilkinson

SOLICITOR FOR THE 2ND RESPONDENT:

Crescent Head Legal

COUNSEL FOR THE 3RD RESPONDENT:

Mr Wilkinson

SOLICITOR FOR THE 3RD RESPONDENT:

Crescent Head Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

Orders

All former orders relating to the following children are discharged:
(a) A Eyton, born on … 2000;
(b) B Eyton, born on ……

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.

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Details

AGLC: Eyton & Eyton & Ors [2013] FamCA 657
Case: [2013] FamCA 657
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered parenting orders concerning eight children of the applicant father and first respondent mother. The paternal grandparents were also parties to the proceedings, as the eldest child had resided with them for approximately ten years and all parties agreed to equal shared parental responsibility for this child. The primary dispute concerned the living arrangements for the seven younger children, who were residing with the mother, and whether they should continue to do so, given the paternal grandparents' limited capacity to provide long-term residential assistance to these children.

The court was required to determine the appropriate living arrangements and parental responsibility for all eight children, taking into account the presumption of equal shared parental responsibility and the impact of family violence. Specifically, the court had to consider whether the presumption of equal shared parental responsibility applied, given evidence of family violence by the father. Further issues included the extent of time the children should spend with each parent, and whether any orders were necessary to protect the children, including an injunction regarding the mother's older son. The court also had to address the potential inconsistency between the proposed parenting orders and an existing apprehended violence order protecting the mother and children from the father.

Justice Austin found that the presumption of equal shared parental responsibility did not apply to the seven youngest children due to incontrovertible evidence of the father's family violence. Consequently, the mother was granted sole parental responsibility for these seven children, who were ordered to live with her. The eldest child was to live with the paternal grandparents, with equal shared parental responsibility to be shared between the parents and the paternal grandparents. The court made detailed orders regarding the time the children would spend with the father, including specific conditions for overnight stays with the seven youngest children until they reached the age of ten, requiring the presence of a paternal grandparent in their home. An injunction was also made restraining the mother's older son from associating with the children due to allegations of sexual assault.

The court made orders discharging all former orders and establishing new arrangements for the children's living situations and parental responsibility. The orders specified that the eldest child would live with the paternal grandparents and have equal shared parental responsibility between the parents and paternal grandparents. The seven younger children were ordered to live with the mother, who was granted sole parental responsibility for them. The court also made detailed provisions for the father's time with the children, including specific conditions for overnight stays with the younger children and an injunction preventing the mother's older son from associating with any of the children. The court noted that these orders prevailed to the extent of any inconsistency with an existing apprehended violence order.

Orders