FALLS & PATSON

FAMILY COURT OF AUSTRALIA

FALLS & PATSON [2020] FamCA 907

FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Where final parenting orders were previously made by consent providing for the children to live with the mother and spend substantial time with the father – Where the father sought reversal of the children’s residence – Where the mother opposed reversal of the children’s residence and sought orders for the children to spend time with the father in accordance with a similar regime imposed by the previous consent orders – Where the ICL supported the father’s application –- Where it is alleged the mother’s parenting capacity is impaired due to her unwillingness or inability to support the children’s relationships with the father – Where the mother lacks the insight to objectively critique reports made by the children about the father and events in his household – Where allegations that the children were subjected or exposed to the risk of harm by reason of sexual abuse, family violence and neglect were either not supported by the evidence or abandoned – Where the children have meaningful relationships with both parties – Where the children wish to retain their residence with the mother and spend more time with the father – Where considerable weight must be attributed to the children’s views due to their ages – Where the father and his partner are not readily available as primary carers – Where the mother submitted she would comply with orders made by the Court – Ordered the children live with the mother and spend substantial time with the father

FAMILY LAW – CHILDREN – Parental responsibility – Where the parties accept the presumption of equal shared parental responsibility does not apply – Family violence – Where an order for equal shared parental responsibility would not be in the children’s best interests – Where the parties implicitly accept that the residential parent should be vested with sole parental responsibility – Where the children will continue to live with the mother – Ordered the mother shall have sole parental responsibility for the children.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 102NA

Bondelmonte v Bondelmonte (2017) 259 CLR 662
RCB v Forrest (2012) 247 CLR 304
Re David (1997) FLC 92-776

APPLICANT: Ms Falls

RESPONDENT: Mr Patson

INDEPENDENT CHILDREN’S LAWYER: Denise Clark, Solicitor & Advocate

FILE NUMBER: NCC 1436 of 2015

DATE DELIVERED: 30 October 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12, 13 & 14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bateman

SOLICITOR FOR THE APPLICANT: Nash Allen Williams & Wotton

COUNSEL FOR THE RESPONDENT: Mr Mooney

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

Orders

1. All former orders in respect of the following children are discharged:

   (a)       X, born … 2007; and

   (b)       Y, born … 2009.

2. The mother…