Leyton & Jacks - [2023] FedCFamC2F 860

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leyton & Jacks [2023] FedCFamC2F 860

File number(s): ADC 220 of 2011

Judgment of: JUDGE JENKINS

Date of judgment: 14 July 2023

Catchwords: FAMILY LAW - parenting – lengthy history of litigation between parties – one child no longer subject to the proceedings – allegations of unsafe living environment – mental health concerns – risk of eviction – child nearly 15 years of age with long standing views – psychological impact on the child of significant change to parenting arrangements - ability to meet the child’s emotional needs – parental insight – equal shared parental responsibility where there is ongoing hostility and lack of trust

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 60CA, 60CC, 65D, 65DAA

Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 8.20

Cases cited:
Andrew & Delaine [2009] FamCAFC 182

Grella & Jamieson [2017] FamCAFC 21

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Division: Division 2 Family Law

Number of paragraphs: 102

Date of last submission/s: 20 February 2023

Date of hearing: 28 September 2022, 17-19 October 2022 & 13 December 2022

Place: Adelaide

Counsel for the Applicant: Mr McQuade

Solicitor for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Mr Praolini

Solicitor for the Respondent: Angela Ferdinandy

Counsel for the Independent Children's Lawyer: Ms Fuda

Solicitor for the Independent Children's Lawyer: Legal Services Commission of SA
ORDERS

ADC 220 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR LEYTON

Applicant

AND:
MS JACKS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE JENKINS

DATE OF ORDER:

14 JULY 2023

THE COURT ORDERS THAT:
1.That all previous Orders be discharged
2.That the parties have equal shared parental responsibility for X born in 2008 (“X”).
3.X live with each of his parents on a week about basis from the conclusion of school (or 3.00pm) Friday until the conclusion of school (or 3.00pm) the following Friday and each alternate week thereafter.

BY CONSENT:
4.X spend time for special occasions as follows:
(a)With the mother on Mother’s Day from 10.00am to 5.00pm each year;
(b)With the father on Father’s Day from 10.00am to 5.00pm each year;
(c)With the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2023 and each alternate year thereafter NOTING X will be in the father’s care from 3.00pm Christmas Day until 3.00pm Boxing Day in 2023 and each alternate year thereafter;
(d)With the mother from 3.00pm Christmas Day until 3.00pm Boxing Day in 2024 and each alternate year thereafter NOTING X will be in the father’s care from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2024 and each alternate year thereafter;
(e)On X’s birthday if a school day from the conclusion of school until 6.30pm in the parent’s care he is not living with that day and from 10.00am to 5.00pm if a non-school day or such other times as agreed in writing between the parents.

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 Leyton & Jacks

Details

AGLC: Leyton & Jacks [2023] FedCFamC2F 860
Case: [2023] FedCFamC2F 860
Decision Date

CaseChat Overview and Summary

This case concerned parenting arrangements for X, a child nearing 15 years of age, who had been living in an arrangement where he spent nine nights with his mother and five nights with his father. The father sought orders for X to live with him and spend alternate weekends and holidays with the mother due to the living conditions in the mother’s home, the ongoing threat of eviction and the mother’s mental health. The mother was concerned about the father’s ability to meet X’s emotional needs but conceded the importance of supporting X’s wishes and therefore promoted orders for equal shared care. The Independent Children’s Lawyer supported the mother’s position with regards to time spending. The key issues the court had to decide were whether the mother’s home posed a risk to X, what X’s views were and how much weight they should carry, and what the order was that was likely to bring an end to any further proceedings. The court found that it was in X’s best interests for the parties to have equal shared parental responsibility, and that it was in X’s best interests to live in an equal shared care arrangement. The court found that although the mother’s home had been extremely cluttered and in an unhygienic state at times, there was no expert evidence to support the father’s assertions about the health and safety risk posed to X. The court also found that X’s psychologist did not accept X was somehow parentified. The court found that there was a significant risk to X’s psychological wellbeing if he were ordered to live primarily with the father, and that X’s views should be given significant weight. The court found that an equal shared care arrangement would be reasonably practicable and in X’s best interests.

Orders