Wallis and Diamond - [2017] FCCA 832

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLIS & DIAMOND

[2020] FCCA 832

Catchwords:
FAMILY LAW – Parenting – parents separating when boy four years old – boy now 10 years old – parents having high conflict post-separation relationship – conflict causing neurological damage to boy’s developing brain – boy sometimes unable to regulate emotions – boy sometimes violent towards others, including his mother – boy preferring to live with his father.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MR WALLIS

Respondent:

MS DIAMOND

File Number:

HBC 1144 of 2010

Judgment of:

Judge Riley

Hearing dates:

9, 10, 16, 17 and 22 March 2017

Date of last submission:

3 April 2017

Delivered at:

Melbourne

Delivered on:

28 April 2017

REPRESENTATION

Counsel for the applicant:

Mr Grant

Solicitors for the applicant:

Dobson Mitchell Allport

Counsel for the respondent:

Mr Kanarev

Solicitors for the respondent:

Borchard & Moore

Advocate for the independent children’s lawyer:

Ms Dosanjh

Solicitors for the independent children’s lawyer:

Hartleys Lawyers

ORDERS

All previous orders be discharged.
The father have sole parental responsibility for X born on (omitted) 2006 (“X”).
The father notify the mother in writing of any major, long-term decisions he proposes to make in relation to X 28 days prior to making them, and invite the mother’s input.
X live with his father.
X spend time with his mother:
(a)during school terms, every alternate weekend, commencing on 5 May 2017 from after school, or 3:30pm if it is not a school day, on Friday until before school, or 9am if it is not a school day, on Monday;
(b)from after school on the last day of term until 5pm on the middle Saturday of each school term holiday;
(c)each alternate week, from after school on the last day of term 4, until 5pm seven days later, during the long summer holidays;
(d)from 5pm on the Saturday before Mothers’ Day until the commencement of school, or 9am if it is not a school day, on the following Monday;
(e)from 3pm on Christmas Day until 3pm on Boxing Day in 2017 and each odd-numbered year thereafter;
(f)from 3pm on Christmas Eve until 3pm on Christmas Day in 2018 and each even-numbered year thereafter;
(g)as otherwise agreed in writing between the parents.
X spend time with the parent with whom he is not residing on his birthday from after school until 7pm, if his birthday falls on a school day, or from 12md until 6pm, if his birthday falls on a non-school day.
If X would not otherwise be with his father on the weekend of Fathers’ Day, X’s time with his mother on that weekend finish at 5pm on the Saturday before Fathers’ Day.
If X has any sporting commitments on any weekend that he spends with his mother, she take X to and from at least one of them.
Subject to order 8, the mother be at liberty to include X in (nationality omitted) cultural events and attend (omitted) Church services with X…

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 Wallis and Diamond

Details

AGLC: Wallis and Diamond [2020] FCCA 832
Case: [2017] FCCA 832
Decision Date: 28 April 2017

CaseChat Overview and Summary

In the matter of Wallis and Diamond, heard by Judge Riley, the dispute concerned parenting orders for a child, X. The mother had filed an application on 10 October 2016, which was adjourned to a final hearing on 9 March 2017.

The court was required to determine the future parenting arrangements for X, including issues of parental responsibility, residence, and time spent with each parent. Additionally, the court needed to address the parents' capacity to co-parent, the potential impact of their conflict on X, and the appropriate measures to facilitate improved communication and insight into their parenting styles.

Judge Riley discharged all previous orders and made new orders granting the father sole parental responsibility for X, with X to live with the father. The mother was to be notified in writing of major, long-term decisions 28 days prior to their making, with an invitation for her input. Specific arrangements were detailed for X's time with his mother, including during school terms, holidays, and special occasions. The court also imposed orders for both parents to attend a Parenting Orders Program for assessment and counselling, to follow the program's recommendations, and to provide certificates of engagement and completion. Further orders addressed geographical restrictions on the father's relocation, the mother's ability to take X overseas, and a prohibition on physical discipline by either parent. The court also mandated mediation for future disputes and outlined provisions for information sharing between parents regarding X's schooling and residential details. The mother's application was otherwise dismissed.

Orders

Orders of the court

All previous orders be discharged.

The father have sole parental responsibility for X born on (omitted) 2006 (“X”).

The father notify the mother in writing of any major, long-term decisions he proposes to make in relation to X 28 days prior to making them, and invite the mother’s input.

X live with his father.

X spend time with his mother:

(a) during school terms, every alternate weekend, commencing on 5 May 2017 from after school, or 3:30pm if it is not a school day, on Friday until before school, or 9am if it is not a school day, on Monday;

(b) from after school on the last day of term until 5pm on the middle Saturday of each school term holiday;

(c) each alternate week, from after school on the last day of term 4, until 5pm seven days later, during the long summer holidays;

(d) from 5pm on the Saturday before Mothers’ Day until the commencement of school, or 9am if it is not a school day, on the following Monday;

(e) from 3pm on Christmas Day until 3pm on Boxing Day in 2017 and each odd-numbered year thereafter;

(f) from 3pm on Christmas Eve until 3pm on Christmas Day in 2018 and each even-numbered year thereafter;

(g) as otherwise agreed in writing between the parents.

X spend time with the parent with whom he is not residing on his birthday from after school until 7pm, if his birthday falls on a school day, or from 12md until 6pm, if his birthday falls on a non-school day.

If X would not otherwise be with his father on the weekend of Fathers’ Day, X’s time with his mother on that weekend finish at 5pm on the Saturday before Fathers’ Day.

If X has any sporting commitments on any weekend that he spends with his mother, she take X to and from at least one of them.

Subject to order 8, the mother be at liberty to include X in (nationality omitted) cultural events and attend (omitted) Church services with X when he is spending time with her.

10.

Changeovers occur at school at school times and otherwise at “(omitted)” in (omitted).

11.

The father not relocate further than 80kms from his current residence.

12.

The mother be restrained from taking X overseas except with the written consent of the father.

13.

Each parent be restrained from physically disciplining X.

14.

Each parent:

(a) attend the Parenting Orders Program at EACH in (omitted) (“the program”) for assessment and family counselling;

(b) follow the recommendations of the program administrator; and

15.

On the day that the father first attends the program for assessment, the father provide to the program administrator a copy of any family report relating to the parents and X, and a copy of the reasons for these orders.

16.

Within 14 days of receipt, each parent serve on the independent children’s lawyer a copy of that parent’s certificate of engagement with the program.

17.

Within 14 days of receipt, each parent serve on the independent children’s lawyer a certificate of completion of the program.

18.

The father authorise X’s school to forward to the mother (at the mother’s expense, if any) school reports, photographs, newsletters and any other material a parent normally receives and the mother be at liberty to attend parent teacher interviews and any other school event a parent would usually attend.

19.

The mother and father keep the other informed of their current residential address and telephone number (including mobile) and inform the other of any change within 24 hours.

20.

In the event there is a dispute about these orders between the mother and father, then the mother and father at first instance attend mediation through Victoria Legal Aid and/or Relationships Australia (or any approved family dispute resolution service) prior to issuing an application in either this court or the Family Court of Australia.

21.

The appointment of the independent children’s lawyer be discharged upon her being satisfied by appropriate evidence that both parents have completed the parenting orders program.

22.

The mother’s application in a case filed on 10 October 2016 and adjourned to the final hearing on 9 March 2017 be otherwise dismissed.

23.

Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

A. The purpose of orders 14 to 17 is to assist the parents to address their long-standing conflicted relationship, to better communicate, to develop respect for their different parenting styles and to gradually develop insights into how their conflicted relationship, and the exposure of X to it, is having long term effects on X’s emotional well-being and development.

B. Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

C. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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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