Ferres & Bellmore - [2023] FedCFamC1F 363

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ferres & Bellmore [2023] FedCFamC1F 363

File number(s): BRC 7266 of 2012

Judgment of: HOWARD J

Date of judgment: 6 March 2023

Catchwords: FAMILY LAW – PARENTING – Parents unable to communicate – Wishes of the 12 year old child – Best interests of the child.

Legislation:
Family Law Act1975 (Cth) ss 60CA, 60CC, 61DA, 65DAC, 102NA

Evidence Act 1995 (Cth) s 140

Cases cited:
Baghti & Baghti & Ors [2015] FamCAFC 71

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67

Eagle & Scarlett (No.2) [2020] FamCAFC 291

Rice & Asplund (1979) FLC 90–725

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 58

Date of hearing: 13 – 15 February 2023, 6 March 2023

Place: Brisbane

Counsel for the Applicant: Ms Marshall

Solicitor for the Applicant: Northside Family Law

Respondent: Litigant in person

Counsel for the Independent Children’s Lawyer: Mr McGregor

Solicitor for the Independent Children’s Lawyer: Wallace Perkins Family Law
ORDERS

BRC 7266 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FERRES

Applicant

AND:
MR BELLMORE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HOWARD J

DATE OF ORDER:

6 MARCH 2023

THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child X born 2011 (“the child”) live with the mother.
2.That the child spend time with the father at all times as agreed between the parties and failing agreement, the child shall spend time with the father each alternate weekend from after school Friday until before school Monday.
3.That this matter be listed for mention at 10.00am on 10 May 2023 for the parties to make submissions as to the wording of the final orders to reflect the reasons for judgment.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferres & Bellmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 6 March 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.

The child X was born in 2011. X is the child of the applicant mother, Ms Ferres, and the respondent father, Mr Bellmore.…

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 Ferres & Bellmore

Details

AGLC: Ferres & Bellmore [2023] FedCFamC1F 363
Case: [2023] FedCFamC1F 363
Decision Date

CaseChat Overview and Summary

Ms Ferres and Mr Bellmore were the parents of a 12-year-old child, X. They separated in 2012 and had been engaged in litigation for over eight years. The primary issue before the court was to determine the best parenting arrangements for X, considering his diagnosed anxiety disorder, specific learning disability, and the parents' differing approaches to managing these conditions. The court had to decide on the primary considerations under s 60CA of the Family Law Act 1975 (Cth), including the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from psychological harm. Additionally, the court had to weigh various factors under s 60CC(3) of the Act, such as X's wishes, the nature of his relationships with each parent, and the capacity of the parents to meet his needs.

The court found that X had a meaningful relationship with both parents, but his anxiety and learning disability caused significant distress during interactions with his father, particularly concerning homework. X expressed a clear preference to spend less time with his father, which the court considered given significant weight due to his age. The court also noted the parents' inability to communicate effectively and their conflicting views on X's health and education. The court concluded that equal shared parental responsibility was not suitable due to the parents' inability to consult each other meaningfully. Instead, the court ordered sole parental responsibility to the mother, requiring her to consult with the father on major decisions, with the mother having the final say if they could not agree.

The court ordered that X live primarily with his mother, with specific visitation arrangements with his father during alternate weekends and school holidays. The court also prohibited X from using the PlayStation to communicate with his mother while at his father's house, emphasizing the importance of direct interaction during visits. The court directed the Independent Children's Lawyer to prepare a draft order reflecting these reasons and orders, to be submitted to the court and the parties.

Orders