FAMILY LAW – CHILDREN – remittal on issue of child’s school – resulting remittal of issue of child’s time with father – where Mother seeks to reduce the Father's time – where Father seeks equal time –where Mother claims that she and the child subjected to family violence and Father poses unacceptable risk to the child unless his time reduces – whether failure to cross-examine the Mother regarding all allegations should lead to conclusion that her allegations were unchallenged - operation of the Rule in Browne v Dunne - Weight to be given to child’s view to retain current time arrangement and remain at current school
Legislation:
Family Law Act 1975 (Cth) ss 4, 4AB, Part VII, ss 60CC, 60CA, 60B, 61C, 61DA, 61DAB, 65D(1), 65DAA, 65DAC, 102NA
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS REESE
Applicant
AND:
MS RALSTON
Respondent
order made by:
JUDGE TURNBULL
DATE OF ORDER:
23 December 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the Mother and Father shall have equal shared parental responsibility for the child X born in 2014 (‘X’).
3.That X live with the Mother unless otherwise specified in these Orders.
4.That X shall spend time with the Father as follows:
(a)During school terms —
(i)Until X completes his primary school education, from after school Friday until the beginning of school Wednesdays, in each alternate week, commencing the first Friday of each school term;
(ii)From the commencement of X’s grade seven year — on a week-about basis — from after school Friday until the commencement of school…
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
Reese & Ralston [2022] FedCFamC2F 1790
Case
[2022] FedCFamC2F 1790
Decision Date
CaseChat Overview and Summary
Reese and Ralston involved a complex dispute between the parents, Ms Reese and Ms Ralston, regarding the parenting arrangements for their son, X, who was born in 2014. The case had a protracted history, with numerous interim orders being made before reaching a final hearing. The key issues before the court were the child's schooling and the amount of time he should spend with each parent during school terms. The case was remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a different judge, focusing on these two specific issues. The retrial commenced on 15 September 2022 and concluded on 30 September 2022. The Mother alleged a history of family violence by the Father, which he denied. The court considered the evidence, including expert reports and the views of the child, and found that the Mother's allegations of family violence were largely unsubstantiated. The court also considered the child's best interests, including his relationship with both parents, the need to protect him from harm, and the views of the child. The court found that maintaining the current 5/9 arrangement during school terms was in the child's best interests and reasonably practicable. The court ordered that the child would remain at his current primary school until he commences secondary education at a specified school in grade 7, at which time an equal time arrangement would commence. The court also ordered that the parties would communicate via a specified parenting app. These orders were considered to be in the child's best interests and reasonably practicable.