THWAITE & HATCHER - [2012] FamCA 619

FAMILY COURT OF AUSTRALIA

THWAITE & HATCHER [2012] FamCA 619

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – where the child will live with the mother – where the mother and father will have equal shared parental responsibility

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child - where the child will live with the mother – where the mother and father will have equal shared parental responsibility – where the child will have graduated time with the father – where the child will spend substantial and significant time with the father

FAMILY LAW – RELOCATION – whether the mother can take the child interstate – where father is established in Brisbane – where the mother is ordered to live within 50 kilometres of her current residence unless she first obtains the written consent of the father

Family Law Act 1975(Cth) s 4, s 60B, s 60CA, s 60CC, s 61DA, s 62B, s 65AA, s 65 DAA
Domestic and Family Violence Protection Act 1989 (Qld)

B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Cowley & Mendoza [2010] FamCA 597
Heath & Hemming [2011] FamCA 749
Preston & Preston [2011] FamCA 618

APPLICANT: Mr Thwaite

RESPONDENT: Ms Hatcher

INDEPENDENT CHILDREN’S LAWYER: Rob Grant

FILE NUMBER: BRC 1579 of 2009

DATE DELIVERED: 1 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 1 and 2 September 2011
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Grant & Associates
Orders
1.The mother and the father have equal shared parental responsibility for the child L born … October 2008 (“the child”).
2.The child shall live with the mother.
3.The mother shall not relocate the child’s residence outside an area of 50 km radius from her current residence, without the prior written consent of the father.
4.The mother and the father shall take all reasonable steps to ensure that the child spends time with the father at all times as may be agreed between the parties but failing any other agreement as follows:
(a)For a period of 3 months from the date of these orders:
(i)each Saturday from 9.00 am to 2.00 pm, with changeover to occur at the E Contact Centre;
(ii)each Sunday from 9.00 am to 2.00 pm, with changeover to occur at the E Contact Centre;

(b)Thereafter for a period of 1 month:
(i)each Saturday from 9.00 am to 5.00 pm, with changeover to occur at the E Contact Centre;
(ii)each Sunday from 9.00 am to 5.00 pm, with changeover to occur at the E Contact Centre;

(c)Thereafter for a period of 2 months:
(i)each Saturday from 9.00 am to 11.00 am Sunday, with changeover to occur at the E…

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

Case: [2012] FamCA 619
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered the parenting arrangements for a young child, L, born in October 2008. The dispute involved the child's mother, Ms. Hatcher, and father, Mr. Thwaite, who shared equal parental responsibility. The primary issues before the court were with whom the child would live, the extent of time the child would spend with each parent, and whether the mother could relocate the child interstate.

The court was required to determine the best interests of the child, as mandated by the Family Law Act 1975 (Cth). This involved assessing various factors, including the child's right to have a meaningful relationship with both parents, the need to protect the child from harm, and the capacity of each parent to provide for the child's needs. Specifically, the court had to consider the proposed living arrangements, the proposed time spent with each parent, and the implications of the mother's desire to relocate interstate, given the father's established residence.

In its reasoning, the court applied the principles of the Family Law Act 1975 (Cth), focusing on the paramountcy of the child's best interests. The court noted the parents' inability to agree on parenting arrangements despite both desiring significant involvement in the child's life. The court's orders reflected a structured approach to increasing the child's time with the father, commencing with supervised contact and gradually transitioning to more extensive periods, including overnight stays and shared school holiday time. Crucially, the court imposed a restriction on the mother relocating the child more than 50 kilometres from her current residence without the father's written consent, acknowledging the father's established presence in Brisbane.

The court ordered that the child would live with the mother and that the parents would have equal shared parental responsibility. The mother was restrained from relocating the child's residence outside a 50-kilometre radius of her current home without the father's prior written consent. The orders detailed a graduated schedule for the child to spend time with the father, increasing over time, and also addressed communication, holiday arrangements, and parental responsibilities regarding the child's health and education.

Orders