Prince and Walsh - [2012] FamCA 275

FAMILY COURT OF AUSTRALIA

PRINCE & WALSH

[2012] FamCA 275

FAMILY LAW- CHILDREN- PARENTAL RESPONSIBILITY - RESIDENCE - Whether it is in best interests of children for parents to have equal shared parental responsibility – Where there is high conflict between the parents – Where the father seeks sole parental responsibility - Where the father seeks to relocate with the children – Where relocation is sought to a location several hours away from current location – Where regular time with mother is found to be destabilising and not in best interests of children – Where sole parental responsibility is found to be in best interests of children and father is allowed to relocate with them – Where school holiday time only with the mother is considered in children’s best interests

Family Law Act 1975 (Cth) s 60B(1), s 60B(2), s 60CA, s60CC(2), s60CC(3), s60CC(4), s60CC(6) s61DA(2), s61DA(4) and s 65D

APPLICANT:

Ms Prince

RESPONDENT:

Mr Walsh

INDEPENDENT CHILDREN’S LAWYER:

Damien Carter

FILE NUMBER:

BRC

8241

2009

DATE DELIVERED:

30 April 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10 April 2012

REPRESENTATION

FOR THE APPLICANT:

Ms Prince in person

FOR THE RESPONDENT:

Mr Walsh in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Solicitors

Orders

That all previous parenting orders are discharged.
That the children, B, born … October 1996, and W, born on … January 1999, (“the children”) shall live with the father.
That the father has sole parental responsibility for the children subject to the obligation to inform the mother in writing of any decision he makes in respect of major-long term issues (as that term is defined in s 4 of the Family Law Act 1975 (as amended)) in respect of the children.
That the father is at liberty to relocate the residence of the children to Town C during the second week of the June/July school holidays, 2012.
That until the father relocates the residence of the children to Town C the children shall spend time with the mother on each alternate weekend from after school Friday until 5:00 pm on Sunday commencing on Friday 11 May, 2012, as well as in the first week of the June/July school holidays, 2012.
That after the father relocates the residence of the children to Town C the children shall spend time with the mother for all of the first half of Queensland gazetted school holidays, save that in 2013 and alternative years thereafter they shall return to the father’s care at midday on 23 December and go back into the mother’s care at midday on 2 January thereafter, staying with her until they have spent half of those December/January school holidays with the mother.
For the purposes of determining half of the school holidays, the school holidays shall be deemed to commence at midnight at the end of the last day of school each term and to conclude at midnight at 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.

Continue reading Prince and Walsh

Details

AGLC: Prince and Walsh [2012] FamCA 275
Case: [2012] FamCA 275
Decision Date: 30 April 2012

CaseChat Overview and Summary

In *Prince and Walsh*, Forrest J of the Federal Circuit Court of Australia made orders concerning the parenting of two children, B and W. The dispute involved the children's living arrangements, parental responsibility, and the father's proposed relocation with the children.

The court was required to determine the primary residence of the children, the allocation of parental responsibility, and whether to permit the father to relocate the children's residence. Additionally, the court had to establish a detailed schedule for the children's time with each parent, including provisions for school holidays and transitions, as well as communication arrangements between the children and the mother.

Forrest J discharged all previous parenting orders and ordered that the children live with the father. The father was granted sole parental responsibility, with an obligation to inform the mother in writing of any decisions regarding major long-term issues. The court permitted the father to relocate the children to Town C during the June/July school holidays of 2012. Specific arrangements were made for the children's time with the mother, both before and after the relocation, including detailed provisions for school holidays and transitions at a designated location. The court also made orders regarding communication between the children and the mother, and the father's obligation to keep the mother informed of the children's health and education. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous parenting orders are discharged.

That the children, B, born … October 1996, and W, born on … January 1999, (“the children”) shall live with the father.

That the father has sole parental responsibility for the children subject to the obligation to inform the mother in writing of any decision he makes in respect of major-long term issues (as that term is defined in s 4 of the Family Law Act 1975 (as amended)) in respect of the children.

That the father is at liberty to relocate the residence of the children to Town C during the second week of the June/July school holidays, 2012.

That until the father relocates the residence of the children to Town C the children shall spend time with the mother on each alternate weekend from after school Friday until 5:00 pm on Sunday commencing on Friday 11 May, 2012, as well as in the first week of the June/July school holidays, 2012.

That after the father relocates the residence of the children to Town C the children shall spend time with the mother for all of the first half of Queensland gazetted school holidays, save that in 2013 and alternative years thereafter they shall return to the father’s care at midday on 23 December and go back into the mother’s care at midday on 2 January thereafter, staying with her until they have spent half of those December/January school holidays with the mother.

For the purposes of determining half of the school holidays, the school holidays shall be deemed to commence at midnight at the end of the last day of school each term and to conclude at midnight at the beginning of the first day of school each term with the children to be delivered by the father to the mother’s care at midday on the first day of each school holidays and, save as otherwise provided for herein, collected by the father from the mother’s care at midday on the day on which the exact half way point of the holidays falls, and should the exact half way point be at midnight then the children shall be collected from the mother at midday the next day.

The children shall transition from the father’s care to the mother’s care and from the mother’s care to the father’s care outside the Town D Police Station unless otherwise agreed between the parties in writing in advance, save for on the Friday afternoons remaining in the current school term where they are to go into the mother’s care where transition can occur by the mother collecting them from school.

The children shall communicate with the mother at their discretion but the mother shall only initiate unsolicited communication with them on two occasions each week.

10.

The father shall keep the mother informed as to the health and educational progress of the children including as to the names and contact details of medical practitioners who may treat either or both children from time to time and as to the name and address of any school attended by either or both children and this Order is authority for any such medical practitioner or school to provide the mother with any information she may request of them that they are lawfully able to provide.

11.

The mother and the father shall keep each other informed as to their residential address, landline and mobile telephone numbers and shall advise the other within 24 hours of any change to those details.

12.

The Independent Children’s Lawyer is discharged.

13.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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