Jessen & Whitehouse - [2023] FedCFamC2F 459

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jessen & Whitehouse [2023] FedCFamC2F 459

File number(s): SYC 2633 of 2020

Judgment of: JUDGE MORLEY

Date of judgment: 24 April 2023

Catchwords: FAMILY LAW – parenting – application for final orders – where children are in their late teenage years – where one child lives with the Mother and the other lives with the Father – assessment of the childrens’ best interests – assessment of the nature and extent of the time the children spend with their parents respectively

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 62G

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Isles & Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

M v M (1988) 166 CLR 69

Napier & Hepburn [2006] FamCA 1316

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 298

Date of last submission/s: 1 July 2022

Date of hearing: 8-10 November 2021 and 2 May 2022

Place: Sydney

Counsel for the Applicant: Mr Schonell

Solicitor for the Applicant: Fresh Legal Solutions

Counsel for the Respondent: Ms Hamilton

Solicitor for the Respondent: Litigant in person

Counsel for the Independent Children’s Lawyer for X: Ms Treherne

Solicitor for the Independent Children’s Lawyer for X: Legal Aid NSW Suburb AU Family Law

Counsel for the Independent Children’s Lawyer for Y: Ms Knight and Mr Blank

Solicitor for the Independent Children’s Lawyer for Y: Laura K Law
ORDERS

SYC 2633 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS JESSEN

Applicant

AND:
MR WHITEHOUSE

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

24 April 2023

THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for their children X born in 2005 (‘X’) and Y born in 2007 (‘Y’).
2.Y live with her Father.
3.During school term time, Y spend time with her Mother each alternate weekend from the end of school (or 3:00PM if not a school day) on Friday until 7:00PM on Sunday, with the first such occasion of time to occur on Friday, 28 April 2023.
4.During school holidays, Y spend time with her Mother:
(a)For the school holidays occurring at the end of Terms 1, 2, and 3 – for half of each school holiday period, being the first half of such school holidays that commence in an even numbered year and the second half of such school holidays that commence in an odd numbered year;
(b)For the school holidays occurring at the end of Term 4 – for half of the school holiday period, with such time to be on a week-about basis unless Y wishes that the time she spends be in one block equal to half of the school holiday period, and starting with the…

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 Jessen & Whitehouse

Details

AGLC: Jessen & Whitehouse [2023] FedCFamC2F 459
Case: [2023] FedCFamC2F 459
Decision Date

CaseChat Overview and Summary

In the matter of Jessen and Whitehouse, Judge Morley of the Federal Circuit and Family Court of Australia (Division 2) considered the legal issues arising from the parenting arrangements for the parties’ children, X and Y. The court evaluated the evidence presented, including the Family Report and the submissions of the Independent Children’s Lawyers for X and Y, to determine what parenting orders would best serve the children's interests. Judge Morley found that it was in the best interests of Y, who was 15 years old at the time of the final hearing, to have equal shared parental responsibility with both parents and to live with her Father. While the court acknowledged the presumption in section 61DA of the Family Law Act 1975 that it is in the child's best interests for both parents to have equal shared parental responsibility, it found that it was not in Y's best interests to spend equal time with each parent. Instead, the court determined that it was in Y’s best interests to spend additional time with her Mother according to her wishes, thereby allowing the possibility of substantial and significant time if it aligns with Y’s wishes and does not trigger further conflict between the mother and daughter. The final orders made by the court included provisions for Y to spend alternate weekends and half of each school holiday period with her Mother, as well as specific orders for time during special occasions such as Christmas, New Year, and Easter. The court also made orders regarding changeovers, travel, therapy, and communication between the parents and Y.

Orders