PEARCE & PEARCE - [2019] FamCA 871

FAMILY COURT OF AUSTRALIA

PEARCE & PEARCE

[2019] FamCA 871

FAMILY LAW – PARENTING – Where the children live with the wife – Where the children’s time with the husband was the subject of disputation – Family violence –Alcohol use – Expert opinion as to CDT testing – Where the presumption of equal shared parental responsibility does not apply – Wife to have sole parental responsibility in relation to health and otherwise equal shared parental responsibility – Children to spend increasing time with the husband.

Australian Passports Act 2005 (Cth) s 11(2)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Family Law Act 1975 (Cth) ss 60CC, 61DA, 65AA, 65DAA, 106A

Doherty & Doherty [2016] FamCAFC 182

APPLICANT.

Mr Pearce

RESPONDENT.

Ms Pearce

INDEPENDENT CHILDREN’S LAWYER.

Legal Aid NSW

FILE NUMBER.

SYC

2654

2017

DATE DELIVERED.

28 November 2019

PLACE DELIVERED.

Sydney

PLACE HEARD.

Sydney

JUDGMENT OF.

Ryan J

HEARING DATE.

5, 6 ,7 & 8 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT.

Mr Scarlett

SOLICITOR FOR THE APPLICANT.

Hudson Law

COUNSEL FOR THE RESPONDENT.

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT.

Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER.

Mr Greenaway

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER.

Legal Aid NSW

Orders by consent

Definitions

That in these Orders:
(a) “Act” means the Family Law Act 1975 (Cth);
(b) “Children” means X and Y;
(c)“X” means X born … 2010; and
(d)“Y” means Y born … 2013.
That all prior parenting orders in these proceedings be discharged.

Parental responsibility

That the wife has responsibility for making decisions for the day to day care of the children when the children are living with her.
That the husband has responsibility for making decisions for the day to day care of the child when the children are spending time with him.

Live with

That the children shall live with the wife.

Special occasions

Notwithstanding any other order to the contrary, that the children spend time with the wife as follows:
(a)from 10.00 am on 24 December 2019 to 10.00 am on Christmas Day in 2019 and each alternate year after that;
(b)from 9.00 am on Good Friday 2020 to 5.00 pm on Easter Monday in 2020 and each alternate year after that;
(c)if Mother’s Day occurs on a weekend where the children would be in the husband’s care pursuant to an order of the Family Court, then the children shall:
(i)spend time with the wife from 3.00 pm on the Friday immediately prior to Mother’s Day until 9.00 am on the Monday immediately after Mother’s Day; and
(ii)in 2020, spend time with the husband from 9.00 am on Saturday to 5.00 pm on Sunday on the weekend immediately following the Mother’s Day weekend in lieu of the Mother’s Day weekend;
(iii)in 2021 and thereafter, spend time with the husband from 3.00 pm on Friday to 9.00 am on Monday on the weekend immediately following the Mother’s Day weekend in lieu of the Mother’s Day weekend.
(d)on the wife’s birthday as agreed between the…

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: PEARCE & PEARCE [2019] FamCA 871
Case: [2019] FamCA 871
Decision Date: 28 November 2019

CaseChat Overview and Summary

This case involved Mr. Pearce (the applicant) and Ms. Pearce (the respondent) concerning parenting arrangements for their two children, X and Y. The primary dispute centred on the children's time with the husband, with issues of family violence and alcohol use raised. The matter was heard in the Family Court of Australia by Ryan J.

The court was required to determine the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) and whether it applied in this case, given the history of family violence and alcohol use. The court also had to consider the best interests of the children, as mandated by section 60CC of the Act, and make orders regarding their living arrangements, time spent with each parent, and parental responsibility for decision-making.

His Honour found that the presumption of equal shared parental responsibility did not apply due to the presence of family violence. Consequently, the court ordered that the wife have sole parental responsibility in relation to the children's health needs, while equal shared parental responsibility would apply in all other respects. The children were ordered to live with the wife, with their time spent with the husband to progressively increase. The court also made detailed orders regarding communication, travel, and specific prohibitions against derogatory remarks and discussing court proceedings in the children's presence.

Orders