Paulson & Welch - [2023] FedCFamC2F 167

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paulson & Welch [2023] FedCFamC2F 167

File number(s): NCC 49 of 2020

Judgment of: JUDGE BETTS

Date of judgment: 6 February 2023

Catchwords: FAMILY LAW – Parenting – one child aged six years – where the parents live a little over two hours apart – where the child has been living with each parent on a week-about, equal time basis – where the child is set to commence school this year – where the Court must then make orders for the child to live with either the mother or father to enable the child to attend school – where the Court must consider the risks in each parties household and determine which parent the child should live with – best interests of the child.

Legislation: Family Law Act1975 (Cth), Pt VII

Cases cited: Amador & Amador [2009] FamCAFC 196

Division: Division 2 Family Law

Number of paragraphs: 207

Date of last submission/s: 25 January 2023

Date of hearing: 23, 24 and 25 January 2023

Place: Newcastle

Counsel for the Applicant: Mr Wilkinson

Solicitors for the Applicant: Winder Lawyers

Counsel for the Respondent: Mr Flanigan

Solicitors for the Respondent: Grant & Co

Counsel for the Independent Children’s Lawyer: Ms Hamilton

Solicitors for the Independent Children’s Lawyer: Jennifer Blundell and Associates

ORDERS

NCC 49 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PAULSON

Applicant

AND:
MR WELCH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BETTS

DATE OF ORDER:

6 FEBRUARY 2023

THE COURT ORDERS THAT:
1.That all previous parenting orders concerning X born in 2016 (“the child”) are disregarded.
2.The child live with the Father.
3.Subject to the immediately following order, the Father shall have sole parental responsibility for the child.
4.In relation to the Father exercising sole parental responsibility for the child, the following shall apply:
(a)Where the Father is required to make a non-urgent long-term decision for the child, the Father shall provide the Mother with twenty-one (21) days’ notice of the relevant issue, his proposed decision concerning the issue and invite the Mother to have any input with respect to the decision that the Father has to make;
(b)If the Mother wants her views to be considered, she is to respond to the Father within seven (7) days;
(c)The Father shall ultimately make the decision concerning the long-term issue and he shall promptly advise the Mother of the decision once made; however
(d)Where the Father makes an urgent long-term decision for the child, the Father shall advise the Mother of the decision made as soon as practical after he has made the decision.
5.The child spend time with the Mother as agreed between the parties but failing agreement as follows:
(a)During school terms:
(i)Each alternate weekend from 5.00pm on Friday until 5.00pm Sunday or 5.00pm Monday should Monday be a public holiday.

(b)For one half of each of the school holiday periods falling at the end of Terms 1, 2 and 3 being…

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: Paulson & Welch [2023] FedCFamC2F 167
Case: [2023] FedCFamC2F 167
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Paulson v Welch [2023] FedCFamC2F 167, the Court was required to determine the future parenting arrangements for the child X, born in 2016, in circumstances where the parties lived approximately 165 kilometres apart. The Court needed to decide whether X should live primarily with the mother or the father and to consider the risks in each party's household. The Court was also required to decide the allocation of parental responsibility between the parties. The Court considered the primary and additional considerations set out in s 60CC of the Family Law Act 1975 (Cth) and concluded that the risks of harm in the mother's care were vastly greater than those in the father's care. The Court made orders that X live with the father and that the father have sole parental responsibility with a requirement to consult the mother on certain matters. The Court also made orders concerning the time X would spend with the mother, the communication between X and the mother, and the restraints on each party.

Orders