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Leighton & Bainum

Leighton & Bainum

Case [2022] FedCFamC2F 1615 24 November 2022

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Leighton & Bainum [2022] FedCFamC2F 1615

File number(s): MLC 9761 of 2022

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 24 November 2022

Catchwords: FAMILY LAW – change of parenting application issued 22 months after final orders - Final orders provide for shared care 8/6 plus half holidays - application to reduce time because of proposed relocation to 2/12 plus half holidays - child distressed at idea of moving - allegation Mother feels isolated, ostracised, unsupported and unhappy

Legislation:
Evidence Act 1995 (Cth), s 140

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

Cases cited:
Adamson & Adamson [2014] FLC93-622

AMS v AIF (1999) 199 CLR 160

Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064

Champness & Hanson (2009) FLC 93-407

Cox & Pedrana [2013] FamCAFC 48; (2013) FLC 93-537

Fox v Percy (2003) 214 CLR 118

Franklyn & Franklyn [2019] FamCAFC 256

Goode and Goode (2006) FLC 93-286

Hamish & Brighton [2014] FamCAFC 242; (2014) FLC 93-624

Jurchenko & Foster (2014) FLC 93-598

Loverdos & Bonner (2022) FLC 94-113

Maldera v Orbel (2014) FLC 93-602

McCall & Clark (2009) 41 Fam LR 463, (2009) FLC 93-405

Morden & Coad [2019] FamCAFC 233

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230

Oswald & Karrington (2016) FLC 93-726

Sayer & Radcliffe [2012] FamCAFC 209

Searson & Searson (2017) FLC 93-788

U & U (2002) FLC 93-112

Ulster & Viney [2016] FamCAFC 133; (2016) FLC 93-722

Wagstaff & Wagstaff (2022) FLC 94-098

Division: Division 2 Family Law

Number of paragraphs: 116

Date of hearing: 22 & 23 November 2022

Place: Melbourne

Counsel for the Applicant: Mr D Carne

Solicitor for the Applicant: Ella Thompson Legal

Counsel for the Respondent: Ms A Skinner

Solicitor for the Respondent: Dawes & Vary Riordan Pty Ltd

ORDERS

MLC 9761 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LEIGHTON

Applicant

AND:
MR BAINUM

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 November 2022

THE COURT ORDERS THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the child of the relationship X born in 2013 (the child).

Care Arrangements
2.The child live with the mother.
3.The child spend time and communicate with the father during school terms as follows (with such arrangement to resume after school holiday period as if it had continued during the school holidays) and in the same rotation as is currently in place, as follows:
(a)Week 1:
(i)From the conclusion of school or 3:30pm Thursday until the commencement of school or 9:00am Monday each alternate weekend, save if the Monday is a public holiday in which event time shall conclude at the commencement of school on Tuesday; and

Week 2:
(ii)From the conclusion of school or 3:30pm Wednesday until the commencement of school or 9:00am Friday.

(b)At such other times as agreed between the parties.

Special Occasions
Mother’s special occasion time
4.If the child is in…

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.

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Details

AGLC: Leighton & Bainum [2022] FedCFamC2F 1615
Case: [2022] FedCFamC2F 1615
Decision Date

CaseChat Overview and Summary

This case involved a parenting application brought by the mother, Ms Leighton, to reduce the time the child spends with the father, Mr Bainum, and for the child to live with her. The existing shared care arrangement was for the child to live with the mother and spend time with the father on 6 nights per fortnight during school terms and half of all school holidays. The mother sought for the child to live with her and for the father to spend time with the child on alternate weekends and one evening per week in addition to half of all school holidays. The father opposed the mother’s application. The mother proposed relocating to a different area which would require the child to change schools and result in a reduction in the father’s time with the child. The mother’s case was that she needed to move for her own wellbeing and the child’s best interests. The father’s case was that the existing arrangements were working well and should be maintained. The court considered the evidence and applicable law and determined that the father’s proposal was in the child’s best interests and the mother’s proposal was contrary to the child’s best interests. The court made orders for the child to continue to live with the mother but for the father to continue to spend time with the child on 6 nights per fortnight during school terms and half of all school holidays, maintaining the existing arrangements. The court considered the child’s need for a meaningful relationship with both parents, the effect of any changes on the child’s circumstances, and the parents’ capacity to provide for the child’s needs. The court found that maintaining the existing arrangements would allow the child to continue to have a meaningful relationship with both parents and was in the child’s best interests.

Orders