GOSLING & SHARP - [2020] FamCA 1108

FAMILY COURT OF AUSTRALIA

GOSLING & SHARP

[2020] FamCA 1108

FAMILY LAW – PARENTING – dispute between the parents where both parents initially sought primary residence of the child who has special needs and limited time with the other parent –where the child had previously been living in a shared care arrangement – the mother initially predicated her case on the basis that she was in a better position to ensure the child’s immersion in the cultural heritage of both parents – father sought residency of the child on the basis of the risk the mother posed as a result of her mental health issues and past transient lifestyle – during the trial it became apparent that the mother had a fervent belief that the child had been sexually abused despite no objective evidence to substantiate her belief – mutual allegations of past family violence – assessment of risk of both parents – findings that the father does not pose any risk to the child – findings that the mother’s mental health poses a risk to the child to warrant a reduction of her time with the child so that he lives primarily with the father and spends four nights a fortnight with the mother together with holidays and special occasions

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Evidence Act 1995 (Cth) ss 140

Bell & Nahos [2016] FamCAFC 244
McCall & Clark [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520
M v M (1988) 166 CLR 69
Stott & Holgar and Anor [2017] FamCAFC 152

APPLICANT:

Mr Gosling

RESPONDENT:

Ms Sharp

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

7302

2017

DATE DELIVERED:

22 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

7-10, 25, 28 September 2020

WRITTEN SUBMISSIONS:

Independent Children’s Lawyer – 12 October 2020

Respondent – 16 October 2020
Applicant – 30 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms B. Lane

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr G. Thistleton

SOLICITOR FOR THE RESPONDENT:

Marcou And Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr G. Ambrose

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

All previous orders be discharged.
The parties have equal shared parental responsibility for the child, X, born … 2013 (the child), save that the Father have sole parental responsibility in relation to all matters concerning the child's health and education.
The Father provide to the Mother details and information in relation to decisions concerning the child's health and education within 7 days of such decision being made, save that in the event of emergency, the Father provide to the Mother details and information forthwith after the making of such decision.
The child live with the Father.
The child spend time with the Mother as follows:
(a) during school terms in a fortnightly cycle:
(i)in week one, from after school on Friday (or 4.00pm if a non-school day) until the commencement of school…

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: GOSLING & SHARP [2020] FamCA 1108
Case: [2020] FamCA 1108
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard a dispute between Mr Gosling (the applicant father) and Ms Sharp (the respondent mother) concerning their child, X, who was born in 2013. The primary dispute revolved around the living arrangements and parental responsibility for X, who has special needs. Initially, both parents sought primary residence, with the mother emphasizing her ability to foster X's cultural heritage and the father raising concerns about the mother's mental health and past lifestyle. During the proceedings, the mother expressed a strong, unsubstantiated belief of sexual abuse involving X, and mutual allegations of family violence were made.

The court was required to determine several key issues. These included assessing whether either parent posed a risk to X, whether the existing equal time arrangement should continue, and if not, what revised time arrangement with the mother would be appropriate if X were to live primarily with the father. Furthermore, the court had to decide whether to order equal shared parental responsibility or to grant the father sole parental responsibility for specific matters concerning X's health and education.

In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), particularly focusing on the best interests of the child. The court found that the father posed no risk to X. However, it determined that the mother's mental health presented a risk warranting a reduction in her time with the child. Consequently, the court ordered that X live primarily with the father, with specific provisions for X to spend time with the mother, including four nights a fortnight during school terms, a portion of school holidays, and on special occasions. The court also made orders for equal shared parental responsibility, with the exception that the father would have sole responsibility for decisions regarding X's health and education.

Orders