Nicholson & Andrews - [2022] FedCFamC2F 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nicholson & Andrews [2022] FedCFamC2F 76

File number(s): SYC 4656 of 2019

Judgment of: JUDGE BECKHOUSE

Date of judgment: 2 February 2022

Catchwords: FAMILY LAW – PARENTING – Relocation from NSW to Tasmania – where the father and Independent Children’s Lawyer oppose relocation – admissibility of expert report due to bias and forensic prejudice – role of family report writer – when intimidating, monitoring and controlling behaviour induces fear – when need to protect from harm is prioritised over promotion of parental relationship – the state of the mother’s mental health and the impact on her parenting capacity – where articulating safety concerns is not evidence of a parents’ inability to promote a meaningful relationship – long term impact of exposure to parental conflict on the child – relocation permitted.

Legislation: Evidence Act 1995 (Cth), s.135
Family Law Act 1975 (Cth), ss.117, 60CC, 61DA, 65DAA, 69ZT(1)
Federal Circuit Court Rules 2001 (Cth), rr.15.06A, 15.07
Federal Court Rules 2011 (Cth), Pt.23

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Cases cited:
AMS & AIF (1999) 163 ALR 501
Bass & Bass [2008] FamCAFC 67
Collu & Rinaldo [2010] FamCAFC 53
G & C [2006] FamCA 994
Godfrey & Sanders (2007) 208 FLR 287

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

Morgan & Miles (2007) FLC 93-343

MRR & GR (2010) 263 ALR 368
Hildebrand & Mathisen [2012] FMCAFam 1127

Division: Division 2 Family Law

Number of paragraphs: 226

Date of hearing: 7 – 10 June 2021

Place: Sydney

Counsel for the Applicant: Mr Wong

Solicitor for the Applicant: Finn Roache Lawyers

Counsel for the Respondent: Mr Tockar

Solicitor for the Respondent: MGA Law

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
ORDERS

SYC 4656 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NICHOLSON

Applicant

AND:
MS ANDREWS

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

8 FEBRUARY 2022

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous orders are discharged except for Order 6 to 9 of the Orders made on 10 June 2021 which will remain in place until the mother departs for Tasmania with X.

Parental Responsibility
2.The parties shall have equal shared parental responsibility for the child, X born in 2015 (hereinafter “the child”).
3.The mother shall have responsibility for making decisions for the day to day care of the child when the child is in her care.
4.The father shall have responsibility for making decisions for the day to day care of the child when the child is in his care.

Live with
5.The child shall live with the mother and the mother be and is permitted to relocate the child to live in Tasmania.

Spend time with
6.Unless otherwise agreed in writing by the parties, the child shall spend time with the father following the mother’s move to Tasmania as follows

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 Nicholson & Andrews

Details

AGLC: Nicholson & Andrews [2022] FedCFamC2F 76
Case: [2022] FedCFamC2F 76
Decision Date

CaseChat Overview and Summary

This is a parenting case concerning the application by the mother to relocate with the child, X, to Tasmania. The father opposes the relocation. The mother is also seeking orders concerning the amount of time the father should spend with X. The Court found in favour of the mother’s application to relocate and made orders concerning the amount of time the father should spend with X. The Court found that it was in X’s best interests for the mother to relocate to Tasmania with X. The Court found that the mother’s mental health would benefit from the relocation. The Court also found that the father’s conduct towards the mother and X following separation was concerning and that there was a risk that X would continue to be exposed to the father’s anger and volatile outbursts. The Court was not satisfied that the father would be able to regulate his behaviour or emotions in the future and that he had failed to take responsibility for his actions. The Court was also concerned that the father had not completed the anger management course that the Court had ordered him to complete. The Court found that the father’s conduct towards the mother and X was coercive and controlling in nature and that it would benefit the mother and X if the father was removed from their lives as much as possible. The Court found that the father’s conduct had the potential to harm X if it continued and that the best way to mitigate the risk was to limit the father’s involvement in X’s life. The Court found that the father’s behaviour towards the mother was psychologically abusive and that X had become aware of the conflict between the parents. The Court found that X would benefit from the protection of the mother’s relocation to Tasmania. The Court found that X would be exposed to the conflict between the parents and the father’s anger if he remained in Sydney. The Court found that the mother’s anxiety would be alleviated by the father’s absence and that the mother and X would benefit from the stability and safety that living in Tasmania would provide. The Court found that the father had failed to take responsibility for his conduct towards the mother and X and that he had failed to complete the anger management course that the Court had ordered him to complete. The Court found that the father’s conduct had the potential to harm X if it continued and that the best way to mitigate the risk was to limit the father’s involvement in X’s life. The Court found that the mother’s application to relocate was in X’s best interests and that the father’s opposition to the relocation was not in X’s best interests. The Court made orders permitting the mother to relocate with X to Tasmania and made orders concerning the amount of time the father should spend with X. The Court found that the father’s conduct towards the mother and X was coercive and controlling in nature and that it would benefit the mother and X if the father was removed from their lives as much as possible. The Court found that the father’s conduct had the potential to harm X if it continued and that the best way to mitigate the risk was to limit the father’s involvement in X’s life. The Court found that the mother’s anxiety would be alleviated by the father’s absence and that the mother and X would benefit from the stability and safety that living in Tasmania would provide. The Court found that the father’s conduct had the potential to harm X if it continued and that the best way to mitigate the risk was to limit the father’s involvement in X’s life. The Court found that the father’s conduct towards the mother and X was coercive and controlling in nature and that it would benefit the mother and X if the father was removed from their lives as much as possible.

Orders