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Phillips & Francis

Phillips & Francis

Case [2022] FedCFamC2F 1413 20 October 2022

Jurisdiction

Standing

Equal Shared Parental Responsibility

Best Interests of the Child

Child’s Wishes

Family Violence

Emotional and Psychological Abuse

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Phillips & Francis [2022] FedCFamC2F 1413

File number(s): MLC 10260 of 2020

Judgment of: JUDGE BURT

Date of judgment: 20 October 2022

Catchwords: FAMILY LAW – CHILDREN – RESIDENCE – child’s best interests – where there is a lack of parental cooperation and communication – where the child has been exposed to parental conflict – weight to be given to the views of the child – change of residence.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 65DAA

Cases cited:
Beckham & Desprez (2015) 55 Fam LR 310; [2015] FamCAFC 247

Bondelmonte v Bondelmonte (2017) 259 CLR 662; (2017) 341 ALR 179; (2017) ALJR 402; [2017] HCA 8

Isles & Nelissen [2022] FedCFamC1A 97

Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235

Jurchenko & Foster (2014) 51 Fam LR 588; (2014) FLC 93-598; [2014] FamCAFC 127

Masson v Parsons (2019) 266 CLR 554; (2019) 368 ALR 583; (2019) 59 Fam LR 503; [2019] HCA 21

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92

MRR v GR [2010] 240 CLR 461; (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4

Potter & Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350

R & R: Children’s Wishes (2000) FLC 93-000; [2000] FamCA 43

Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 185

Date of hearing: 29 and 30 August and 1 September 2022

Place: Melbourne

Counsel for the Applicant: Mr Byrne

Solicitor for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Ms Elleray

Solicitor for the Respondent: MMH Lawyers

Counsel for the Independent Children's Lawyer: Mr Allen

Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law
ORDERS

MLC 10260 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PHILLIPS

Applicant

AND:
MR FRANCIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BURT

DATE OF ORDER:

20 october 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the child, X born in 2012 (“X”).
3.X spend time with the father from 3pm on 20 October 2022 until 6pm on 23 October 2022.
4.From 6pm on 23 October 2022 until 20 December 2022:
(a)X live with the mother; and
(b)X spend time and communicate with the father:
(i)during school terms in a two week cycle:
A.in week one: from the conclusion of school on Friday, or 3.30pm if a non-school day, until 6pm on Sunday, or Monday if that Monday is a public holiday or a pupil free day; and
B.in week two: within 20 kilometres of X’s school, from the conclusion of school on Wednesday, or 3.30pm if a non-school day, until 7pm; and

(ii)by…

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 Phillips & Francis

Details

AGLC: Phillips & Francis [2022] FedCFamC2F 1413
Case: [2022] FedCFamC2F 1413
Decision Date

CaseChat Overview and Summary

In this case, the Federal Circuit and Family Court of Australia (Division 2) considered the parenting arrangements for X, a child born in 2012, who has been in the care of her mother, Ms Phillips, since her parents separated in May 2016. The father, Mr Francis, sought a change in the parenting arrangements, arguing that X should live primarily with him during the school terms. The mother opposed this change and sought to maintain the existing arrangements. The court was required to decide on the best interests of the child, considering factors such as the benefit of a meaningful relationship with both parents, the need to protect the child from physical or psychological harm, and the views of the child. The court found that it was in X's best interests to live primarily with her father during the school terms, while maintaining shared parenting arrangements for weekends and school holidays. The court also made orders regarding residence, communication, changeovers, and special days.

The court's reasoning was based on the evidence presented by both parents, family consultants, and other professionals involved in the case. The court found that the mother's conduct had exposed X to emotional and psychological abuse, and that her lack of insight into X's emotional needs was concerning. The father, on the other hand, was found to be more attuned to X's needs and better equipped to provide her with appropriate therapy. The court also considered X's wishes, which strongly favoured living with her father, and found that her wishes were based on her perception that her father was more attuned to her emotional needs. The court also considered the impact of a change in circumstances, including the likely effect of a separation from a parent or other significant persons in X's life, and found that the proposed arrangements would be in X's best interests.

The final orders made by the court provided for X to live primarily with her father during the school terms, with shared parenting arrangements for weekends and school holidays. The court also made orders regarding residence, communication, changeovers, and special days, as well as orders for the parents to facilitate X's attendance at therapy and to undertake parenting courses. The court also made orders restraining the parents from exposing X to family violence and from denigrating the other parent in X's presence.

Orders