WADSLEY & CABASSA - [2020] FCCA 1089

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADSLEY & CABASSA

[2020] FCCA 1089

Catchwords:
FAMILY LAW – Parenting – three year old child – whether the presumption of equal shared parental responsibility is rebutted – mutual allegations of family violence – allegations by the mother that the child has suffered physical harm in the care of the father – no effective co-parenting relationship between the parties – father seeks orders to change the child’s primary care and for the child to live with him – orders in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CC

Applicant:

MR WADSLEY

Respondent:

MS CABASSA

File Number:

ADC 3383 of 2017

Judgment of:

Judge Kari

Hearing dates:

4, 5, 6 March 2020

Date of Last Submission:

6 March 2020

Delivered at:

Adelaide

Delivered on:

7 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Praolini

Solicitors for the Applicant:

C M Tucker & Associates

Counsel for the Respondent:

Mr Childs

Solicitors for the Respondent:

Matthew Mitchell

ORDERS

That all previous parenting orders in relation to the child X born in 2017, be discharged.
That the mother have sole parental responsibility for the child, save and except that she at all times keep the father informed in writing about any decision she makes in relation to the child’s education and medical treatment.
That the child live with the mother.
That the child spend time with the father as follows:
(a)Until 1 January 2021, from 10 am Saturday until 3 pm Sunday on three out of every four weekends.
(b)As and from 1 January 2021, each alternate weekend from 5 pm Friday until 5 pm Sunday;
(c)From 5 pm on the Saturday before Father’s Day until 5 pm on Father’s Day PROVIDED however that the father’s time pursuant to paragraph 4(a) and 4(b) herein is otherwise suspended on the Mother’s Day weekend;
(d)For Christmas PROVIDED however that the father’s time pursuant to paragraph 4(a) and 4(b) herein is otherwise suspended from Christmas Eve to Boxing Day:
(i)From 4 pm Christmas Eve until 3 pm Christmas Day in the year 2020 and each alternate year thereafter; and
(ii)From 3 pm Christmas Day until 4 pm Boxing Day in the year 2021 and each alternate year thereafter.
(e)That as and from the child commencing school:
(i)For one 5 day block in each of the school holidays at the end of Terms 1, 2 and 3, commencing on the Friday of the father’s time pursuant to paragraph 4(b) herein; and
(ii)For two 5 day blocks in the long school holidays at the end of Term 4, with the first commencing on the first Friday of the father’s time pursuant to paragraph 4(b) herein and the second commencing on the first Friday in January of the father’s time pursuant to paragraph 4(b) herein.
That all handovers of the child be effected at the Suburb A Police Station.
That the parties be restrained and an injunction is granted restraining each of them from:
(a)Discussing these proceedings…

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 WADSLEY & CABASSA

Details

AGLC: Wadsley and Cabassa [2020] FCCA 1089
Case: [2020] FCCA 1089
Decision Date: 7 May 2020

CaseChat Overview and Summary

In the matter of *Wadsley & Cabassa*, heard by Judge Kari, the dispute concerned parenting orders for a three-year-old child. The mother alleged that the child had suffered physical harm while in the father's care, and both parties made mutual allegations of family violence. The parties had no effective co-parenting relationship, and the father sought orders for the child to live with him and for a change in primary care.

The court was required to determine whether the presumption of equal shared parental responsibility was rebutted, and what parenting orders would be in the best interests of the child. The central legal issue was how to best protect the child's welfare and safety given the breakdown in the parents' relationship and the serious allegations made by each party against the other.

Judge Kari found that the presumption of equal shared parental responsibility was rebutted due to the mutual allegations of family violence and the mother's specific allegations of physical harm to the child by the father. The court applied the principles of the *Family Law Act 1975* (Cth), prioritising the best interests of the child. The reasoning focused on the need for a stable and safe environment, and the inability of the parties to co-parent effectively.

The court ordered that previous parenting orders be discharged. The mother was granted sole parental responsibility, with the exception that she must keep the father informed in writing about decisions regarding the child's education and medical treatment. The child was ordered to live with the mother, with specific, detailed provisions for the father's time with the child, including staggered increases in time as the child aged and commenced school. The court also made orders regarding handovers, injunctions restraining denigration and physical discipline, and requirements for communication about the child's health and wellbeing.

Orders

Orders of the court

That all previous parenting orders in relation to the child X born in 2017, be discharged.

That the mother have sole parental responsibility for the child, save and except that she at all times keep the father informed in writing about any decision she makes in relation to the child’s education and medical treatment.

That the child live with the mother.

That the child spend time with the father as follows:

(a) Until 1 January 2021, from 10 am Saturday until 3 pm Sunday on three out of every four weekends.

(b) As and from 1 January 2021, each alternate weekend from 5 pm Friday until 5 pm Sunday;

(c) From 5 pm on the Saturday before Father’s Day until 5 pm on Father’s Day PROVIDED however that the father’s time pursuant to paragraph 4(a) and 4(b) herein is otherwise suspended on the Mother’s Day weekend;

(d) For Christmas PROVIDED however that the father’s time pursuant to paragraph 4(a) and 4(b) herein is otherwise suspended from Christmas Eve to Boxing Day:

(i) From 4 pm Christmas Eve until 3 pm Christmas Day in the year 2020 and each alternate year thereafter; and

(ii) From 3 pm Christmas Day until 4 pm Boxing Day in the year 2021 and each alternate year thereafter.

(e) That as and from the child commencing school:

(i) For one 5 day block in each of the school holidays at the end of Terms 1, 2 and 3, commencing on the Friday of the father’s time pursuant to paragraph 4(b) herein; and

(ii) For two 5 day blocks in the long school holidays at the end of Term 4, with the first commencing on the first Friday of the father’s time pursuant to paragraph 4(b) herein and the second commencing on the first Friday in January of the father’s time pursuant to paragraph 4(b) herein.

That all handovers of the child be effected at the Suburb A Police Station.

That the parties be restrained and an injunction is granted restraining each of them from:

(a) Discussing these proceedings with the child or in her presence or permitting anyone else to do so.

(b) Denigrating or criticising the other parent to the child or in her presence or permitting anyone else to do so.

(d) Consuming alcohol or illicit substances for 12 hours prior to or during any time that the child is in their care.

That the mother facilitate and provide whatever authority may be necessary to permit the father to receive all information (at his own cost) that a parent would ordinarily receive directly from the child’s school and/or medical providers.

That the parties each notify the other of them by text message as soon as is reasonably practicable of any medical condition, significant health issue or illness or such other emergency suffered by the child whilst in their care.

That the parties at all times keep each other informed of their mobile telephone number for the purposes of text communication only in relation to the child.

10.

That the proceedings otherwise be dismissed as finalised.

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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