Paterson and Wilson and Anor - [2016] FamCA 202

FAMILY COURT OF AUSTRALIA

PATERSON & WILSON AND ANOR

[2016] FamCA 202

FAMILY LAW – CHILDREN – Applicant is a non-parent – Where the mother and father have failed to participate in the proceedings – Where the father has spent little time with the children due to incarceration but now spends some time with the children supervised by the applicant – Where the mother has some day contact with the children by arrangement with the applicant – Where the children have been residing with the applicant since 2014 – Consideration of best interests principles – Order for the applicant to have sole parental responsibility for the children, for the children to reside with the applicant.

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

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Ms Paterson

1st RESPONDENT:

Ms Wilson

2nd RESPONDENT:

Mr Paterson

INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

FILE NUMBER:

DUC

151

2012

DATE DELIVERED:

4 April 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 March 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Aboriginal Legal Service

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

Orders

That the applicant paternal grandmother Ms Paterson have sole parental responsibility for the children B born … 2010 and C born … 2011 and.
That the children live with the applicant paternal grandmother.
That the respondent mother spend time with and communicate with the children as agreed with the applicant paternal grandmother.
That the respondent father spend time with and communicate with the children as agreed with the applicant paternal grandmother.
That the applicant paternal grandmother provide to the respondent mother and the respondent father details of the children’s schools and/or child care arrangements and in a timely fashion copies of all notices, letters, school reports, school photos and invitations.
That the respondent mother and respondent father may attend parent/teacher interviews or other school activities to which parents are usually invited.
That the respondent mother and the respondent father be at liberty to send the children cards and gifts on their birthday and at Christmas time and otherwise communicate with the children by letter.
That the applicant paternal grandmother shall notify the respondent mother and respondent father as soon as practicable in the event of a medical emergency involving any of the children.
That the applicant paternal grandmother, the respondent mother and the respondent father shall not criticise or denigrate the other or the other’s family in the presence of or within hearing of the children.
That the applicant paternal grandmother shall keep the respondent mother and respondent father informed at all times of her contact details including mobile telephone number and postal and residential address and is to…

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.

Keep reading for free

Create a free CaseChat account to read Paterson and Wilson and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FamCA 202
Decision Date: 4 April 2016

CaseChat Overview and Summary

In *Paterson and Wilson and Anor*, Foster J considered an application concerning the parental responsibility and living arrangements for two children, B and C. The applicant was the paternal grandmother, Ms Paterson, and the respondents were the children's mother and father. The dispute centred on who should have primary care and responsibility for the children.

The court was required to determine the most appropriate orders for parental responsibility, the children's residence, and the nature and extent of contact between the children and their parents. The court also had to consider provisions for communication, information sharing, and the conduct of the parties in relation to the children.

Foster J applied principles of family law, focusing on the best interests of the children. The court's reasoning led to orders granting the paternal grandmother sole parental responsibility and determining that the children would live with her. The orders also established a framework for the parents to spend time with and communicate with the children, subject to agreement with the grandmother, and included specific provisions for information exchange, attendance at school events, and communication by post. The court also made orders prohibiting criticism of each other in the children's presence and requiring the grandmother to keep the parents informed of her contact details. All other outstanding applications were dismissed.

Orders

Orders of the court

That the applicant paternal grandmother Ms Paterson have sole parental responsibility for the children B born … 2010 and C born … 2011 and.

That the children live with the applicant paternal grandmother.

That the respondent mother spend time with and communicate with the children as agreed with the applicant paternal grandmother.

That the respondent father spend time with and communicate with the children as agreed with the applicant paternal grandmother.

That the applicant paternal grandmother provide to the respondent mother and the respondent father details of the children’s schools and/or child care arrangements and in a timely fashion copies of all notices, letters, school reports, school photos and invitations.

That the respondent mother and respondent father may attend parent/teacher interviews or other school activities to which parents are usually invited.

That the respondent mother and the respondent father be at liberty to send the children cards and gifts on their birthday and at Christmas time and otherwise communicate with the children by letter.

That the applicant paternal grandmother shall notify the respondent mother and respondent father as soon as practicable in the event of a medical emergency involving any of the children.

That the applicant paternal grandmother, the respondent mother and the respondent father shall not criticise or denigrate the other or the other’s family in the presence of or within hearing of the children.

10.

That the applicant paternal grandmother shall keep the respondent mother and respondent father informed at all times of her contact details including mobile telephone number and postal and residential address and is to advise the respondent mother of any change within 7 days.

11.

That otherwise all outstanding applications are dismissed.

12.

That these proceedings be removed from the pending cases list.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.