Hood & Weaver (No 2) - [2022] FedCFamC2F 728

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hood & Weaver (No 2) [2022] FedCFamC2F 728

File number(s): NCC 1156 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 8 June 2022

Catchwords: FAMILY LAW – parenting – where final orders made 3 months ago - children aged 11, 7 & 3 – circumstances altered significantly for oldest child only – preliminary dismissal of application to alter orders for younger two children - suspension of final orders and interlocutory orders in place for oldest child only pending result of state court proceedings – best interests of children

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Carriel & Lendrum [2015] FamCAFC 43

Marsden & Winch [2009] FamCAFC 152

Poisat & Poisat [2014] FamCAFC 128

Rice and Asplund [1978] FamCA 84

SPS and PLS [2008] FamCAFC 16

Walter & Walter [2016] FamCAFC 56

Division: Division 2 Family Law

Number of paragraphs: 93

Date of hearing: 21 April 2022

Place: Newcastle

Solicitor for the Applicant: Ms Gough, Resolve Family Law

Solicitor for the Respondent: Ms Meares, Meares 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:
MR WEAVER

Applicant

AND:
MS HOOD

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

8 JUNE 2022

THE COURT ORDERS THAT:
1.The response to initiating application filed by the respondent, Ms Hood (‘the mother’) is dismissed insofar as it seeks orders pertaining to the children Y (‘Y’) born in 2015 and Z (‘Z’) born in 2018.

UNTIL FURTHER ORDER THE COURT ORDERS THAT:
2.Orders 4, 5, 6 and 9 of the final orders pronounced by the Court on 10 February 2022 (‘the final orders’) are suspended, insofar as they relate to X born in 2011 (‘X’).
3.The mother have sole parental responsibility for X.
4.X shall live with the mother.
5.The father have no time or communication with X.

THE COURT NOTES THAT:
A.The parties intend to informally extend the effect of order 5 (b) of the final orders so that Y and Z spend time with the mother each alternate weekend from Friday at 3.00pm until the commencement of school (or 9.00am) Monday.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Weaver & Hood…

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 (No 2)

Details

AGLC: Hood & Weaver (No 2) [2022] FedCFamC2F 728
Case: [2022] FedCFamC2F 728
Decision Date

CaseChat Overview and Summary

In Hood & Weaver (No 2) [2022] FedCFamC2F 728, the Federal Circuit and Family Court of Australia was required to determine whether the mother's application to alter parenting orders relating to two of her three children should be dismissed. The court was also required to determine what parenting orders should be made in relation to the children in circumstances where the parties had agreed that the mother's application (insofar as the eldest child was concerned) must proceed because there had been a significant change in circumstances. The court found that there had not been a sufficient change in circumstances since the final orders were made to warrant the continuation of this litigation which inherently can adversely impact the children's best interests. The court dismissed the mother's application insofar as it related to the two younger children and suspended the final orders as they related to the eldest child. The court made interlocutory orders by consent as submitted by the parties.

Orders