ROTH & ROTH - [2014] FamCA 207

FAMILY COURT OF AUSTRALIA

ROTH & ROTH [2014] FamCA 207

FAMILY LAW – CHILDREN – Best Interests – Where there are two children of the relationship – Where the mother sought orders that the youngest child primarily live with her and that she have sole parental responsibility for him – Where the mother sought that the eldest child live with the parents as agreed between the parents and that the father have sole parental responsibility for her – Where the father sought orders that the parties have equal shared parental responsibility for the older child, that the youngest child live week about between the parties and that the eldest child live with him – Where the ICL proposed that the mother have sole parental responsibility for the youngest child and that the youngest child live mainly with the mother – Where the ICL proposed that the father have sole parental responsibility for the eldest child and that the eldest child live with the father – Where the proceedings primarily relate to the youngest child – Where the parties have found it difficult to constrain the eldest child’s behaviour, living arrangements and lifestyle – Where the parties accept that there is an estrangement between the eldest child and the mother – Where the parties disagree about co-curricular arrangements for the youngest child – Where the mother raises concern about the children’s lateness and absences from school when in the father’s care – Where the presumption of equal shared parental responsibility does not apply – Orders made for the eldest child to live with the father and for the father to have sole parental responsibility for the eldest child – Orders made for the youngest child to live with the mother and spend every second Thursday to Monday with the father – Orders made for the mother to have sole parental responsibility for the youngest child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC

Briginshaw v Briginshaw (1938) 60 CLR 336
Champness & Hanson (2009) FLC 93-407
G & C [2006] FamCA 994
Leighton & Carey [2010] FamCAFC 94
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Pavli & Beffa (2013) 48 Fam LR 677

APPLICANT: Ms Roth

RESPONDENT: Mr Roth

INDEPENDENT CHILDREN’S LAWYER: Maureen Power

FILE NUMBER: SYC 2744 of 2010

DATE DELIVERED: 2 April 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 29, 30 & 31 January 2014
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Swifte Law

COUNSEL FOR THE RESPONDENT: Ms Breeze

SOLICITOR FOR THE RESPONDENT: David H Cohen & Co

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cantrell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
Orders
1)All prior parenting orders in relation to L born … 1999 and S born … 2002 are discharged.
2)The father shall have sole parental responsibility for the child, L, born … 1999.
3)The mother shall have sole…

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: ROTH & ROTH [2014] FamCA 207
Case: [2014] FamCA 207
Decision Date

CaseChat Overview and Summary

In parenting proceedings before the Family Court of Australia, Ms. Roth (the mother) and Mr. Roth (the father) presented differing proposals regarding the parental responsibility and living arrangements for their two children, L (born 1999) and S (born 2002). The mother sought sole parental responsibility for S, with S primarily living with her, and for L to live with the parents as agreed, with the father having sole parental responsibility for L. The father sought equal shared parental responsibility for both children, with S living week about between the parties, and L living with him. The Independent Children’s Lawyer (ICL) proposed that the mother have sole parental responsibility for S, with S living mainly with her, and the father have sole parental responsibility for L, with L living with the father. The proceedings primarily concerned the youngest child, S, and the court noted difficulties the parties had in managing L's behaviour, living arrangements, and lifestyle, as well as an estrangement between L and the mother.

The court was required to determine the best interests of the children, L and S, in accordance with the Family Law Act 1975 (Cth). Specifically, the court had to decide on the allocation of parental responsibility and the children's living arrangements, considering the presumption of equal shared parental responsibility did not apply in this case. The court also had to address the parties' disagreements regarding co-curricular arrangements for S and the mother's concerns about the children's school attendance when in the father's care. The court considered expert evidence from a Family Consultant.

The court's reasoning focused on the paramount consideration of the children's best interests. It made orders for the eldest child, L, to live with the father and for the father to have sole parental responsibility for her, acknowledging the estrangement between L and the mother and the father's role in encouraging L's contact with the mother and continued counselling. For the youngest child, S, the court ordered that he live with the mother and spend every second Thursday to Monday with the father, with the mother having sole parental responsibility for him. This arrangement aimed to provide S with stability while ensuring continued involvement from the father. The court also made detailed provisions for holiday arrangements, birthdays, and communication between the parents regarding the children's welfare, and ordered that both parents attend counselling with S.

The court discharged all prior parenting orders and made final orders reflecting the determined living arrangements and parental responsibilities. These orders included provisions for the father to encourage L to spend time and communicate with the mother and to continue attending counselling. The court also mandated counselling for S, with both parents to attend the initial appointment and the mother to facilitate future recommendations. Leave was granted to the ICL to provide relevant reports to S's counsellor and for the court to explain the orders to both children. Leave was also granted for parties to apply within 28 days regarding the wording of the orders.

Orders