Halsey & Darlow - [2023] FedCFamC2F 717

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halsey & Darlow [2023] FedCFamC2F 717

File number(s): CAC 2016 of 2022

Judgment of: JUDGE BETTS

Date of judgment: 19 May 2023

Catchwords: FAMILY LAW – Parenting – where the mother seeks to relocate with the children back to City B – where the father seeks that the children remain living in the Region C– where the mother will remain living in the Region C if she is unsuccessful – where the father will relocate to City B if he is unsuccessful – where both parents are child-focused and have agreed to implement an “equal time arrangement” whether in the Region C or in City B – where the Court considers that there may be adverse impacts on the mother’s parenting capacity in the event she stays in the Region C– mother’s relocation application successful – best interests of the children.

Legislation: Family Law Act1975 (Cth), Part VII

Cases cited:
Adamson & Adamson (2014) FLC 92-622

AMS & AIF (1999) 199 CLR 160

MRR v GR (2010) FLC 93-424

U & U (2002) 211 CLR 238

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 184

Date of last submission/s: 18 May 2023

Date of hearing: 15 and 16 May 2023

Place: Newcastle

Counsel for the Applicant: Ms Mahony

Solicitors for the Applicant: Parker Coles Curtis

Counsel for the Respondent: Mr Guyder

Solicitors for the Respondent: The Family Law Co

ORDERS

CAC 2016 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HALSEY

Applicant

AND:
MR DARLOW

Respondent

order made by:

JUDGE BETTS

DATE OF ORDER:

19 MAY 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.That the parents have equal shared parental responsibility for the children X born in 2017 and Y born in 2020 (“the children”).

Permission to Relocate the children
2.That the mother be permitted to relocate the children to the Region D as and from the end of this academic school year 2023.

Living arrangements during school terms
3.That the children shall live with the mother and the father, as agreed between the parents in writing, however failing agreement, and until such time as Y commences Kindergarten in 2026, as follows:

Week 1 (3 night blocks)
(a)From 4pm Sunday to 9am Wednesday with the mother; and
(b)From 9am Wednesday to 9am Saturday with the father.

Week 2 (4 night blocks)
(c)From 9am Saturday to 9am Wednesday with the mother; and
(d)From 9am on Wednesday to 4pm Sunday with the father.

4.That in the absence of an agreement in writing between the parents, and upon Y commencing Kindergarten in 2026, the children shall live with each of the parents on a week-about basis, with changeover to occur on a day to be determined, but failing agreement, at the conclusion of school/childcare on Friday.
5.That changeover shall occur as agreed between the parents in writing, however failing agreement in writing:
(a)On school days, at the children’s school and/or…

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 Halsey & Darlow

Details

AGLC: Halsey & Darlow [2023] FedCFamC2F 717
Case: [2023] FedCFamC2F 717
Decision Date

CaseChat Overview and Summary

The case of Halsey & Darlow involved two parents, Ms Halsey and Mr Darlow, who were seeking to determine the best location for their children to reside while maintaining an equal time arrangement. Both parents demonstrated a strong commitment to the children's welfare and had agreed on various aspects of parenting, including equal shared parental responsibility and equal time arrangements. The primary dispute centred on whether the children should remain in the Region C or relocate to City B. The court considered several factors, including the children's relationships with both parents and extended family, the potential impact on the mother's mental health and parenting capacity if she remained in Region C, and the father's reluctance to move to City B.

The mother presented evidence of her diagnosed Autism and Attention Deficit Hyperactivity Disorder (ADHD), which significantly affected her ability to function in Region C. She argued that her mental health and capacity to parent effectively would be adversely impacted if she were required to stay in Region C, potentially leading to negative consequences for the children. The father, while acknowledging the difficulties his partner faced, argued that the mother would be able to cope and that the children would benefit from remaining in the Region C, where they had strong ties with his extended family.

The court found that the mother's relocation to City B would be in the best interests of the children. It determined that the risks associated with the mother remaining in Region C, including potential adverse impacts on her mental health and parenting capacity, outweighed the benefits of the children staying in Region C. The court concluded that the mother's well-being and ability to provide optimal parenting were crucial factors that justified the relocation to City B.

**ORDERS**

The court ordered that:

1. The parents have equal shared parental responsibility for the children.
2. The mother is permitted to relocate the children to the City B region by the end of the current academic year.
3. The children will live with each parent on an equal time basis during school terms and school holidays, with detailed arrangements for time-sharing and changeovers.
4. The parents will make necessary arrangements for the children's schooling and childcare.
5. The children will have communication with the non-resident parent as agreed, with restrictions on negative comments.
6. The parents will share costs for the children's passports and international travel.
7. The matter is removed from the List of Active Pending Cases.

Orders