Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Hood & Weaver (No 2) [2022] FedCFamC1A 205
Appeal from: Hood & Weaver (No 2) [2022] FedCFamC2F 728 Appeal number(s): NAA 146 of 2022 File number(s): NCC 1156 of 2020 Judgment of: ALDRIDGE J Date of judgment: 8 December 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where there had been a change in circumstances since the final orders were made – Interim orders – Where the primary judge dismissed the application made by the mother insofar as it related to the two younger children, but granted it as to the eldest child – Where the mother’s appeal is against the primary judge’s refusal to make orders insofar as they relate to the two younger children – Findings open on the evidence – No error established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08
Cases cited: Bayer & Wynne [2021] FamCAFC 131
Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lindfield & Romano [2022] FedCFamC1A 81
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Number of paragraphs: 62 Date of hearing: 4 November 2022 Place: Newcastle Counsel for the Appellant: Ms Goodchild Solicitor for the Appellant: Meares Law The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Petrie Solicitor for the Independent Children’s Lawyer: Coast Law ORDERS
NAA 146 of 2022
NCC 1156 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HOOD
Appellant
AND: MR WEAVER
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
8 DECEMBER 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hood & Weaver (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
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- AGLC
- Hood & Weaver (No 2) [2022] FedCFamC1A 205
- Case
- [2022] FedCFamC1A 205
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge had failed to take into account the effects of the separation of the children and whether the primary judge had adequately considered the best interests of the children when making the orders. The mother argued that the separation of one child from the other two would have a detrimental impact on their sibling relationships, and that the primary judge had not sufficiently considered this in the final orders. The court was required to determine if the primary judge had erred in this respect.
The appellate court found no error on the part of the primary judge. The court held that the benefit of re-establishing and maintaining the sibling relationship was indeed a significant matter taken into account by the primary judge in arriving at the final orders. The court noted that the primary judge had been aware of the issue of sibling relationships and had considered it in the context of the children's best interests. The appellate court further found that there had not been significant changes in the circumstances of the family since the final orders were made, and that the potential detriment to the children caused by the litigation itself outweighed the need to embark upon it.
The appeal was dismissed, and no order as to costs was sought. The court concluded that the grounds of appeal did not succeed, and that the primary judge had appropriately considered the relevant factors in making the parenting orders.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
These grounds do not succeed. Did the primary judge fail to take into account the effects of the separation of the children? (Ground 3) The mother submitted that the primary judge did not take into account the separation of X from Y and Z, adding that the orders foreclosed the possibility of the three children ever living together. Leaving aside the issue of whether a threshold determination of the kind undertaken by the primary judge is an application for a parenting order invoking s 60CC of the Family Law Act 1975 (Cth) (Poisat & Poisat (2014) FLC 93-597 at [54]; Carriel at [61]), the best interests of the children loom large in the determination to be made. Either way, the benefit of sibling relationships is a relevant matter (s 60CC(3)(d)). It is clear enough that the benefit of re-establishing and maintaining the sibling relationship was a significant matter taken into account in arriving at the 10 February 2022 orders. The primary judge was aware of the issue (Transcript 21 April 2022, p.4 lines 1–20 and p.63 lines 7–26). Relevantly, her Honour said:77.Otherwise, the children’s living circumstances at the time of the trial were that X lived with the mother, Y and Z lived with the father and the children spent alternate weekends with each other in the parties’ respective households. There was no evidence that the children’s physical living and care arrangements have changed. Both boys continue to attend the Suburb G Public School.…82.For the reasons that follow and in relation to Y and Z, I am satisfied that firstly there is not a likelihood that the final orders will be varied in a significant way because there have been significant changes in the circumstances of the family and secondly, that the potential detriment to the children caused by the litigation itself outweighs the need to embark upon it.83.There is no evidence that Y and Z’s age and developmental stages have changed since the final orders were made. Their living arrangements remain as they were when the trial was conducted, that is they live in a household separate to X but maintain regular contact him with him (albeit the time is now reduced by one weekend in a fortnightly cycle and a reduction in school holiday time).84.Accepting the mother’s evidence at its highest, I am not satisfied there have been significant changes to the circumstances of Y and Z because:-(a)The existing status quo has been a constant in the children’s lives since April 2020.……87. In summary this is because –(a)The mother seeks that (relevantly) Y and Z live with her and she exercise sole parental responsibility for them. Y and Z have lived with the father for over two years and despite extensive testing of the mother’s numerous and detailed allegations, the Court determined that the children should remain living with the father. Y is six (6) and Z is almost four (4) and the family report opined that the children will more likely experience consistency and structure in the father’s home which is most important for Z over the next three to five years (see paragraph 174). The father has been making decisions about Y and Z for a considerable period of time and in light of the poor co-parenting relationship, the Court determined that whomever the children live with should be allocated this responsibility.(Footnote omitted) (Emphasis in original)