Hood & Weaver - [2022] FedCFamC2F 118

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hood & Weaver [2022] FedCFamC2F 118

File number(s): NCC 1156 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 10 February 2022

Catchwords: FAMILY LAW – Parenting – where two children of the relationship and one older maternal half-sibling were separated – high conflict parties – impact on children - sole parental responsibility to father – regular structured time with mother - appropriate restraints against denigration and to ameliorate risks of physical discipline or family violence - where educational and medical needs of children must be met – best interests of children

Legislation:
Family Law Act 1975 (Cth) ss 61DA, 60CC, 65C

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.31

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Rice v Miller (1993) FLC 92-415

Bondelmonte v Bondelmonte [2017] HCA 8

Panera & Slidell [2017] FCCA 1573

Browne v Dunn (1893) 6 R 67

Division: Division 2 Family Law

Number of paragraphs: 249

Date of last submission/s: 3 February 2022

Date of hearing: 2-3 February 2022

Place: Newcastle

Counsel for the Applicant: Mr Murray

Solicitor for the Applicant: Intercept Law

Counsel for the Respondent: Mr Scarlett

Solicitor for the Respondent: Resolve Family Law

Counsel for the Independent Children's Lawyer: Ms Reid

Solicitor for the Independent Children's Lawyer: Strive Family Law
ORDERS

NCC 1156 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HOOD

Applicant

AND:
MR WEAVER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

10 FEBRUARY 2021

THE COURT ORDERS THAT:
1.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and despite r 3.02, Mr B is not a necessary party to these proceedings.
2.MR WEAVER (‘the Father’) have sole parental responsibility for the children:-
(a)X born in 2011 (‘X’);
(b)Y born in 2015 (‘Y’); and
(c)Z born in 2018 (‘Z’)

collectively referred to as ‘the children’.
3.The Father shall have responsibility for decisions as to the children’s day to day care, welfare and development during periods when they are living with him and MS HOOD (‘the Mother’) shall have that responsibility at times the children are in her care.
4.The children shall live with the Father.
5.Unless otherwise agreed in writing between the Father and the Mother, the children shall spend time with the Mother during school terms as exercised by the children as follows:-
(a)each Wednesday from 2:00pm - in relation to Z and from 3:00pm (or the conclusion of school) - in relation to X and Y; until 6:00pm commencing Wednesday 16 February 2022 PROVIDED THAT immediately upon Z commencing kindergarten, Z’s time with the mother shall coincide with her brothers’ time, that is from 3:00pm (or the conclusion of school); and
(b)each alternate weekend from Friday at 3:00pm (or the conclusion of school or day care centre respectively) until Sunday at 6:00pm commencing Friday 18 February 2022.

6.Notwithstanding any other order and unless otherwise agreed…

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 Hood & Weaver

Details

AGLC: Hood & Weaver [2022] FedCFamC2F 118
Case: [2022] FedCFamC2F 118
Decision Date

CaseChat Overview and Summary

Hood and Weaver was a parenting case heard in the Federal Circuit and Family Court of Australia. The parents, Ms Hood and Mr Weaver, were in dispute over the allocation of parental responsibility and the living arrangements and time to be spent with each parent by their three children, X, Y and Z. The children had lived with their mother prior to being retained by their father. The mother had commenced recovery order proceedings. The father counterclaimed for parenting orders. The Court found that sole parental responsibility should be allocated to the father. The Court ordered that the children should live primarily with the father and that they should spend time with their mother during alternate weekends and one afternoon each school week. The Court made orders to restrain the parties from exposing the children to family violence, denigrating each other, engaging in physical discipline of the children, and posting or leaving information or material relating to the proceedings on social media. The Court also made orders to facilitate the parents' communication and the flow of information about the children between the parents and their involvement in activities involving the children.

Orders