Ulmer & Herrera - [2023] FedCFamC2F 279

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ulmer & Herrera [2023] FedCFamC2F 279

File number(s): CAC 610 of 2020

Judgment of: JUDGE MANSFIELD

Date of judgment: 16 March 2023

Catchwords: FAMILY LAW – PARENTING – Final Orders – Two children both with high needs – Consent orders reached in relation to older child (16 years old) – Frequent conflict between parents about care and welfare of younger child (15 years old) - Communication between the parents is poor and is worsening – Parental responsibility and living arrangements in issue - Father has demonstrated greater capacity to provide for the extensive needs of the child.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) – ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B(i), 65D, 65DAA, 65DAB, 65DAC, 69ZN, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 5.09(2)

Cases cited:
Cheung v R (1999) ALJR 1093

EB v CT (No .2) [2008] QSC 306

Oswald & Karrington [2016] FamCAFC 152

Summitt & Summitt and Ors (Re-Opening) [2009] FamCA 365

Division: Division 2 Family Law

Number of paragraphs: 120

Date of hearing: 7 to 9 November 2022 and 7 March 2023

Place: Canberra

Counsel for the Applicant: Ms Bateman

Solicitor for the Applicant: Friedlieb Fox Mcleod / Self-Represented for the re-opening hearing on 7 March 2023

Counsel for the Respondent: Mr Shaw

Solicitor for the Respondent: Gilbert & Partners / Self-Represented for the re-opening hearing on 7 March 2023

Counsel for the Independent Children’s Lawyer: Mr Stagg

Solicitor for the Independent Children’s Lawyer: Dillon-Smith Lawyers / Ms Dillon-Smith for the re-opening hearing on 7 March 2023
ORDERS

CAC 610 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ULMER

Applicant

AND:
MS HERRERA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MANSFIELD

DATE OF ORDER:

16 MARCH 2023

THE COURT ORDERS THAT:
1.All previous orders concerning the child, Y, born 2007 are hereby discharged and all outstanding applications are otherwise dismissed.

Parental responsibility
2.The Applicant Father shall have sole parental responsibility for Y.

3. In the exercise of the father’s parental responsibility the father shall:
(a)Notify the Respondent Mother in writing of any decision he intends to make under his exercise of parental responsibility within 14 days prior to making the decision and the mother may provide a response within 7 days and the father will consider the mother’s response before making the final decision; and
(b)Notify the mother in writing within 7 days of the decision made by the father.

Information sharing
4.Within 7 days of any request from the father, the mother shall:
(a)Sign all documents and do all things to transfer authority for the father to deal with the NDIS; and
(b)Provide to the father the details and information about Y’s past treating medical practitioners, specialists and therapists/counsellors.

5.The father is to provide the respondent mother with the names and contact…

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 Ulmer & Herrera

Details

AGLC: Ulmer & Herrera [2023] FedCFamC2F 279
Case: [2023] FedCFamC2F 279
Decision Date

CaseChat Overview and Summary

Ulmer and Herrera concerned the parenting arrangements for two children, X and Y, following the separation of their parents. The father, Mr Ulmer, and the mother, Ms Herrera, disagreed on the allocation of parental responsibility and the living and time arrangements for Y. The case was heard over several days, and the court considered various issues, including the parents' communication, their ability to co-parent, and the children's needs.

The court found that the parents had a poor co-parenting relationship and were unable to effectively communicate with each other. The court was satisfied that the presumption of equal shared parental responsibility did not apply in this case due to the parents' inability to cooperate and make joint decisions about major long-term issues. The court found that the father had demonstrated a greater capacity to provide for Y's extensive needs, and it was in Y's best interests for the father to have sole parental responsibility.

The court ordered that Y would live with the father and spend time with the mother on an agreed schedule, with some additional time on special occasions. The court also made orders concerning changeovers, communication, information sharing, and restraints to protect Y from exposure to conflict between her parents. The court dismissed the mother's application to adjourn the hearing and determined that the father's application in proceeding would be taken into account in the determination of final orders.

Orders