Frye & Colbett (No 2) - [2022] FedCFamC2F 1770

Federal Circuit and Family Court of Australia
(DIVISION 2)
Frye & Colbett (No 2) [2022] FedCFamC2F 1770

File number(s): LNC 432 of 2021

Judgment of: JUDGE TAGLIERI

Date of judgment: 21 December 2022

Catchwords:
FAMILY LAW – parenting – parental responsibility – disagreement as to vaccination of the children – orders that the father have sole parental responsibility for the elder child and the mother have sole parental responsibility for the younger child

FAMILY LAW – parenting – with whom children ought to live and spend time – separation of siblings – where allegations that the mother and the step-father use physical discipline – where elder child exhibiting problem computer gaming behaviours – orders that children live with both parents together and separately on four-weekly rotation – injunctive orders regarding use of alcohol and drugs, denigration, physical discipline, and the children’s use of electronic devices

Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60CA, 60CC(2), 60CC(3), 60CC(3)(h), 61B, 61DA(1) to 61DA(4), 65DAA, 65DAC

Cases cited:
Aldridge & Keaton (2009) FLC 93-421

Dieter & Dieter [2011] FamCAFC 82

Goode & Goode [2006] FamCA 1346

Marvel & Marvel [2010] FamCAFC 101

MRR & GR [2010] HCA 4

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 195

Date of hearing: 11 - 12 August 2022, 20 September 2022 and 29 September 2022

Place: Hobart

Counsel for the Applicant: Mr Trezise

Solicitor for the Applicant: Friend & Edwards

Solicitor for the Respondent: Mr O’Dea, O’Dea & Associates

Counsel for the Independent Children’s Lawyer: Ms Mooney SC

Solicitor for the Independent Children’s Lawyer: McVeity Dean
ORDERS

LNC 432 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FRYE

Applicant

AND:
MR COLBETT

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

21 December 2022

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

Parental Responsibility
2.The Applicant Mother MS FRYE (“the Mother”) have sole parental responsibility for X born in 2011 (“X”) and the Respondent Father mr colbett (“the Father”) have sole parental responsibility for Y born in 2008 (“Y”) (collectively “the children”) subject to the terms of Order 3.
3.Notwithstanding Order 2:
(a)Each parent will give the other parent fourteen (14) days prior written notice of an intended decision being taken, (except in case of emergency) and during such time, the other parent may express a view or comment in writing which is to be considered by the parent with sole parental responsibility before the decision is taken; and
(b)Except in the case of a subsequent court order, the decision taken by the parent with sole parental responsibility will apply and the filing of an application with the Court will not prevent making a decision pursuant to this order.

Living and Time with Arrangements
4.Between the date of these Orders and 1 January 2023, Y will live with the Father and X will live with the Mother.
5.Commencing 1 January 2023, Y is to live and spend time with the parties on a…

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 Frye & Colbett (No 2)

Details

AGLC: Frye & Colbett (No 2) [2022] FedCFamC2F 1770
Case: [2022] FedCFamC2F 1770
Decision Date

CaseChat Overview and Summary

The matter of Frye & Colbett (No 2) concerned the parenting arrangements for two children, Y (born in 2008) and X (born in 2011). The parents, Ms Frye (the mother) and Mr Colbett (the father) separated in about 2015. The final hearing was held in September 2022. The Court made orders that the father have sole parental responsibility for Y and the mother have sole parental responsibility for X, subject to certain terms. The Court made further orders that Y live and spend time with the parties on a four weekly rotation and X live and spend time with the parties on a four weekly rotation. The Court made further injunctive orders and communication orders.

The Court found that the parents' inability to cooperate and communicate effectively, their conflicting attitudes, and their conduct towards each other had negatively impacted the children. The Court found that both parents had contributed to the children's exposure to conflict and that their conduct had caused instability and emotional harm to the children. The Court found that the mother had used physical discipline on the children, but it was not to the extent portrayed by the father. The Court found that the father had encouraged the children to falsely accuse the mother and step-father of physically abusing them. The Court found that the elder child had a close and loving relationship with the father, while the younger child had a stable and loving relationship with the mother. The Court found that the younger child had a strong relationship with his younger half-sister and that it would be emotionally harmful to separate them. The Court found that the father had limited capacity as a parent and that his attitudes or values about freedom of choice were not suitable for the children. The Court found that the mother had proven capacity in providing for the children's daily needs. The Court found that both parents had demonstrated less than satisfactory attitudes and approaches to parenting by their actions in these proceedings.

The Court concluded that the parents were incapable of effective and harmonious joint decision-making. The Court concluded that it was not in the children's best interests for there to be an order for equal shared parental responsibility. The Court concluded that the elder child should primarily live with the father, but subject to specific restraints about the time he spends on computers and gaming. The Court concluded that the younger child should primarily live with the mother. The Court concluded that each child should spend more than a token amount of time with the parent with whom they do not primarily live, and with their younger half-sister and step-father. The Court concluded that the children will live and spend time with the father and mother in a fortnightly arrangement, involving rotation of 2/5/7 for the elder child and 9/5 for the younger child. The Court concluded that the parents communicate using text or email and responses are to be given within 24 hours, except if it is an emergency in which case responses should be as soon as possible. The Court concluded that all changeovers occur at the beginning or end of school and, should changeover fall on non-school days, outside the maternal grandmother's residence. The Court concluded that the children will spend alternate Christmas Days or Boxing Days with each parent. The Court concluded that there will be restraints against non-denigration and involving the children in discussion about these orders or parenting arrangements similar to those that were in the interim orders.

Orders