Karlsson & Karlsson - [2022] FedCFamC2F 1604

Federal Circuit and Family Court of Australia
(DIVISION 2)
Karlsson & Karlsson [2022] FedCFamC2F 1604

File number(s): SYC 8036 of 2017

Judgment of: JUDGE M NEVILLE

Date of judgment: 14 December 2022

Catchwords: FAMILY LAW – parenting – final hearing – high conflict co-parenting relationship – whether presumption of equal shared parental responsibility is rebutted – relationship between adolescent children and father presently estranged – children’s views are strong and longstanding – where father contends parental alienation – where mother contends children’s views independently formed – weight to be placed on children’s views – whether any order can be made for time with father other than in accordance with children’s wishes – application for costs by Independent Children’s Lawyer – orders made for sole parental responsibility in favour of mother – orders that children spend time with father in accordance with their wishes – orders to facilitate mother obtaining travel documents for children and for children’s travel outside of Australia – order that father pay proportion of the Independent Children’s Lawyers costs in the fixed sum of $1,000

Legislation:
Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) pt VII, ss 60B, 60CC, 61C, 61DA, 65D, 65DAB, 65DAC, 65Y, 79A, 106A, 117

Cases cited:
Dawson & Wright [2018] FamCA 266

Karlsson & Karlsson (No 2) [2020] FCCA 144

Picton & Alleva [2021] FCCA 10

Ralton & Ralton [2017] FamCAFC 182

Yapp & Wyndham [2020] FCCA 2122

Division: Division 2 Family Law

Number of paragraphs: 247

Date of hearing: 28, 29 and 30 June 2021

Place: Sydney

For the Applicant: The Applicant appeared in person

For the Respondent: The Respondent appeared in person

Counsel for the Independent Children's Lawyer: Ms Shea

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Gosford Family Law
ORDERS

SYC 8036 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KARLSSON

Applicant

AND:
MR KARLSSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE M NEVILLE

DATE OF ORDER:

14 december 2022

THE COURT ORDERS, on a final basis, THAT:
1.That the Mother have sole parental responsibility for the children, X, born in 2007, and Y, born in 2008 ("the children").
2.That the children live with the Mother.
3.The X and Y shall each spend time with the Father as agreed between the parties taking into account each child's views and wishes.
4.In the event either X or Y express a wish to spend time or communicate with the Father in the future, the Mother is to do all acts and things necessary to arrange such time and/or communication.
5.That pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children, X, born in 2007, and Y, born in 2008, are each entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the Mother is permitted to complete, sign and lodge any application for issue and/or renewal of each child's Australian passport, or any other document…

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 Karlsson & Karlsson

Details

AGLC: Karlsson & Karlsson [2022] FedCFamC2F 1604
Case: [2022] FedCFamC2F 1604
Decision Date

CaseChat Overview and Summary

The matter before the court was a final hearing on parenting arrangements for the three children of Ms Karlsson (the mother) and Mr Karlsson (the father). The mother and the Independent Children's Lawyer sought sole parental responsibility for the mother and orders that the children spend time with the father in accordance with their wishes. They also sought orders that would permit the mother to obtain travel documents for the children and to take them outside of Australia. The father sought an order that the parents have equal shared parental responsibility and that the children live in a shared care arrangement. The court determined that the mother should have sole parental responsibility for the children. It also determined that the children should live with the mother. It further determined that the children should only spend time with the father in accordance with their wishes. The court found that the presumption of equal shared parental responsibility had been rebutted by the evidence and that it was not in the children's best interests that such an order is made. The court made orders that the mother is permitted to obtain travel documents for the children and to take them outside of Australia, without the father's consent. It also made an order that if the mother requires the father to sign any document, deed, affidavit or instrument to record his consent to the children entering and travelling within any overseas country, he must do so within fourteen days of being served with the document. The court made an order that the father pay a proportion of the Independent Children's Lawyer's costs in the fixed sum of $1,000.

Orders