Paisley & Eccleston - [2023] FedCFamC1F 559

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Paisley & Eccleston [2023] FedCFamC1F 559

File number(s): ADC 4535 of 2016

Judgment of: BERMAN J

Date of judgment: 7 July 2023

Catchwords:
FAMILY LAW – CHILDREN – With whom a child spends time with – where the father seeks an increase of time with the children – where the mother seeks that the father’s time with the children be consolidated – Consideration of interim proceedings – where each party seek interim orders that mirror final orders – Where the Court is to act cautiously – where until evidence can be tested, it is not in the children’s best interest to make the orders sought – No orders.

FAMILY LAW – COUNSELLING – Power of the Court to order – where the mother seeks for the children to attend upon a psychologist – Consideration of whether the proposed therapeutic intervention is likely to assist the children – where no evidence has been presented – No orders.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Cases cited:
Marvel & Marvel [2010] 240 FLR 367

Mazorski & Albright [2007] FamCA 520

Division: Division 1 First Instance

Number of paragraphs: 61

Date of hearing: 3 July 2023

Place: Adelaide

Counsel for the Applicant: Ms Miller

Solicitor for the Applicant: Sykes Bidstrup

Counsel for the Respondent: Mr McQuade

Solicitor for the Respondent: Eastern Legal

ORDERS

ADC 4535 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PAISLEY

Applicant

AND:
MS ECCLESTON

Respondent

order made by:

BERMAN J

DATE OF ORDER:

7 july 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 6 June 2023 and the Response to an Application in a Proceeding filed 28 June 2023 are dismissed.
2.Paragraph 13 of Orders dated 4 August 2022 be suspended.
3.Until further order X born 2014 and Y born 2015 (collectively “the children”) spend time with the father as follows:
3.1During the short 2023 July and September/October school holiday periods:
3.1.1If the children have not lived with the father in the last weekend of the preceding school term, from the end of school on the last Friday of the school term to 5.00pm on the middle Saturday of the school holiday period; and
3.2.2If the children have lived with the father in the last weekend of the preceding school term, from 5.00pm on the middle Saturday of the school holiday period to the commencement of school on the first day of the new school term.

3.2 During the 2023 Christmas school holiday period:
3.2.1If the children have not lived with the father in the last weekend of the last school term, from the end of school on the last Friday of the last school term to 5.00pm on the following Friday and alternate weeks thereafter with changeovers to be on Fridays at 5.00pm; and
3.2.2If the children have lived with the father in the last weekend of the last school term, from 5.00pm on the first Friday of…

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 Paisley & Eccleston

Details

AGLC: Paisley & Eccleston [2023] FedCFamC1F 559
Case: [2023] FedCFamC1F 559
Decision Date

CaseChat Overview and Summary

The matter of Paisley and Eccleston before the Family Court involved a dispute between the parents regarding the parenting arrangements for their children. The primary focus of the case was to determine the best interests of the children, with both parents presenting their respective cases based on their unique circumstances and proposals for the children’s welfare. The court was tasked with evaluating the evidence provided and making a decision that would serve the children's interests most effectively.

The legal issues central to this case centred around the interpretation and application of Section 60CC of the Family Law Act, which mandates the court to consider various factors when determining what is in the best interests of the child. These considerations include the benefit to the child of having a meaningful relationship with both parents and other individuals, the child's need for stability, and the need to protect the child from physical or psychological harm. The court needed to weigh these factors against the backdrop of the current parenting arrangements and the proposed changes suggested by the parents.

In delivering its decision, the court considered the evidence and submissions from both parties. The court acknowledged the potential anxiety and distress that any delay in resolving the matter could cause. However, it was determined that altering the existing parenting orders significantly, without a thorough assessment of the new evidence, could potentially harm the children. The court found that the current arrangements, while not perfect, ensured that the children maintained a meaningful relationship with both parents. An extension of the school holiday arrangements was also agreed upon, reflecting a compromise that would help the father engage with the children over a longer period.

Ultimately, the court decided to maintain the existing parenting orders, with the agreed extension for school holidays, until further evidence could be presented and assessed. This decision was made in the belief that it would be in the best interests of the children, balancing their need for stability with the opportunity for both parents to maintain an active role in their lives.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 60CC of the Act sets out the primary and additional considerations that the Court must take in to account in determining what is in the child’s best interests of a child.CONCLUSION I am satisfied that whilst any delay is likely to cause anxiety and distress for the parties and possibly the children, the current orders which regulate the parenting arrangements, promote and ensure that the children maintain a meaningful relationship with each of the parties. It may be that the current orders are not ideal or optimal given that they have been in place now for approximately five years but nonetheless, until the Court is able to properly assess the evidence to be presented by each of the parties, it would not be in the children’s best interests for the orders to be significantly altered. The parties have agreed a significant aspect namely, that the arrangements during the school holidays, and whilst January 2024 is five months away, be extended and the time that the children will spend with the father during school holidays will be a significant adjustment to enable him to engage with the children over a longer period of time. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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File number(s):	ADC 4535 of 2016
Judgment of:	BERMAN J
Date of judgment:	7 July 2023
Catchwords:	FAMILY LAW – CHILDREN – With whom a child spends time with – where the father seeks an increase of time with the children – where the mother seeks that the father’s time with the children be consolidated – Consideration of interim proceedings – where each party seek interim orders that mirror final orders – Where the Court is to act cautiously – where until evidence can be tested, it is not in the children’s best interest to make the orders sought – No orders. FAMILY LAW – COUNSELLING – Power of the Court to order – where the mother seeks for the children to attend upon a psychologist – Consideration of whether the proposed therapeutic intervention is likely to assist the children – where no evidence has been presented – No orders.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Cases cited:	Marvel & Marvel [2010] 240 FLR 367 Mazorski & Albright [2007] FamCA 520
Division:	Division 1 First Instance
Number of paragraphs:	61
Date of hearing:	3 July 2023
Place:	Adelaide
Counsel for the Applicant:	Ms Miller
Solicitor for the Applicant:	Sykes Bidstrup
Counsel for the Respondent:	Mr McQuade
Solicitor for the Respondent:	Eastern Legal

ADC 4535 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PAISLEY Applicant
AND:	MS ECCLESTON Respondent

order made by:	BERMAN J
DATE OF ORDER:	7 july 2023