Lancaster & Hubb - [2022] FedCFamC2F 838

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lancaster & Hubb [2022] FedCFamC2F 838

File number(s): BRC13034 of 2020

Judgment of: JUDGE YOUNG

Date of judgment: 28 June 2022

Catchwords: FAMILY LAW - parenting - concerning one child who is eight years old - where the child lives with the mother and spends time with the father - where the mother unilaterally relocated with the child - where travel time between the mother and father is more than 4 hours by car - where the child has experienced significant instability - where the father alleges the mother has mistreated the child - Court satisfied there is a need to protect the child from harm - Court satisfied the child should return to live in the same region as the father

Legislation:
Evidence Act1995 (Cth) s 140

Family Law Act 1975 ss, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Morgan & Miles (2007) 312 FLR 114
Palmer & Hammer (No.2) [2011] FamCAFC 196
Starr & Duggan [2009] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 104

Date of hearing: 16 March, 23, 24 & 25 May 2022

Place: Brisbane

Counsel for the Applicant: Mr Fisher

Solicitor for the Applicant: Gold Law Town C

The Respondent: Self-represented litigant

Counsel for the Independent Children's Lawyer: Mr Slade-Jones

Solicitor for the Applicant: Lyrene Wiid Lawyers
ORDERS

BRC13034/2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LANCASTER

Applicant

AND:
MR HUBB

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE YOUNG

DATE OF ORDER:

28 JUNE 2022

THE COURT ORDERS THAT:
Parental Responsibility
1.The Mother and Father shall have equal shared responsibility for the child, X, born in 2013 (“the Child”).

Living Arrangements
2.Notwithstanding Order 1, the Child shall attend B School commencing 11 July 2022.
3.Until 10 July 2022 or until the Mother relocates herself and the child to within 10 kilometres of B School (whichever is sooner), the child shall live with the mother and spend time weekend time with the Father according to current arrangements.
4.If by 10 July 2022 the Mother has not relocated herself and the child to live within 10 kilometres of the B School , then the child shall live with the Father and spend time with the Mother every 4 weeks. Such time shall commence on Saturday at 10:00am and conclude at 3:00pm the following day with all changeovers to occur at the Father’s home. Such time shall occur within the Town C/Town D region unless the mother and father agree otherwise.
5.If the Mother relocates herself and the child to within 10 kilometres of the B School, the Child shall live with parents on a week-about basis with all changeovers to be at the Child’s school on Friday afternoons.
6.If the Mother relocates herself and the Child to within 40 kilometres but further than 10 kilometres from the B School, the Child shall live with the Father and spend time with the Mother…

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 Lancaster & Hubb

Details

AGLC: Lancaster & Hubb [2022] FedCFamC2F 838
Case: [2022] FedCFamC2F 838
Decision Date

CaseChat Overview and Summary

This case concerns the parenting of X, an eight-year-old child, who lives with her mother in City F and spends time with her father in Town C. The father seeks sole parental responsibility, equal shared parental responsibility, and orders for the child to live with him and spend time with the mother. The mother proposes equal shared parental responsibility and for the child to live with her and spend time with the father. The independent children's lawyer proposes equal shared parental responsibility and orders for the child to attend B School in Town C. If the mother relocates to within 10 kilometres of B School, the child should live with both parents on a week-about basis. If the mother relocates to within 40 kilometres but more than 10 kilometres from B School, the child should live with the father and spend time with the mother on alternate weekends. If the mother remains in City F, the child should live with the father and spend time with the mother once every 4 weeks. The court must determine the best interests of the child and consider the objects of the Family Law Act 1975 (Cth) and the relevant statutory provisions.

The court found that the mother's unilateral relocation, without regard to the child's needs, was distressing and probably psychologically harmful for the child. The court was concerned about the mother's anger and capacity to regulate it, as well as the father's history of family violence and violent self-harm. The court found that the child has been exposed to family violence and that there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The court found that the mother's unilateral relocation prevented the child from keeping connections with her family, and the father's violent self-harm also constituted family violence. The court concluded that the risk to the child in her present circumstances is unacceptable and can be reduced to an acceptable level only if the child resides in Town C, with, or close to, the father and the maternal and paternal grandparents.

The court ordered that the mother and father shall have equal shared responsibility for the child. The child shall attend B School commencing 11 July 2022. Until 10 July 2022 or until the mother relocates herself and the child to within 10 kilometres of B School (whichever is sooner), the child shall live with the mother and spend time weekend time with the father according to current arrangements. If by 10 July 2022 the mother has not relocated herself and the child to live within 10 kilometres of the B School, then the child shall live with the father and spend time with the mother every 4 weeks. Such time shall commence on Saturday at 10:00am and conclude at 3:00pm the following day with all changeovers to occur at the father’s home. Such time shall occur within the Town C/Town D region unless the mother and father agree otherwise. If the mother relocates herself and the child to within 10 kilometres of the B School, the Child shall live with parents on a week-about basis with all changeovers to be at the Child’s school on Friday afternoons. If the mother relocates herself and the Child to within 40 kilometres but further than 10 kilometres from the B School, the Child shall live with the Father and spend time with the Mother on alternate weekends commencing Thursday after school until Sunday evening at 5:00pm with the mother delivering the Child to the Father’s home at 5:00pm. If the Mother has not relocated herself to within 10 kilometres of the B School by the commencement of Term 1, 2023 then Order 5 herein is discharged. If the Mother has not relocated herself to within 40 kilometres of the B School by the commencement of Term 1, 2023 then Order 6 herein is discharged. The child shall spend the first half of all school holidays with the Father and the second half of all school holidays with the Mother in odd numbered years. In even numbered years, the Child shall spend the first half of all school holidays with the Mother and the second half of all school holidays with the Father. The child shall spend all of the September/October school holidays with the mother if the mother has not relocated to within 40 kilometres of the B School. Each parent shall do all things necessary to ensure the Child spends time with the other parent as set out in these Orders, however, nothing prohibits the parents agreeing to alternative time arrangements. Unless otherwise agreed, the parents shall do all things necessary to ensure the Child communicates privately by Skype or telephone or similar with the absent parent each Wednesday at 6:00pm, and on the Child’s birthday and on Christmas Day at 6:00pm. The father shall seek a referral for the Child to attend for counselling as recommended in the family report. Neither parent shall physically discipline the Child and shall do all things necessary to stop any other person from physically disciplining the Child. Neither parent shall denigrate the other in the presence or hearing of the Child and each parent shall be under a positive duty not to permit the Child to remain in the presence or hearing of another person denigrating the other parent. Each parent shall forthwith inform the other, and keep the other informed in writing, of their respective current residential address, mobile telephone number, and email address. All parenting orders and parenting plans made prior to this date are hereby discharged. All outstanding applications for parenting orders are dismissed. The Independent Children’s Lawyer is hereby discharged.

Orders