Wallisham and Wallisham - [2011] FamCA 873

FAMILY COURT OF AUSTRALIA

WALLISHAM & WALLISHAM

[2011] FamCA 873

FAMILY LAW – CHILDREN – BEST INTERESTS – Male children 15 years and 10 years – Parties agreed many matters – Two issues for determination – Both determined as proposed by independent children's lawyer but with minor changes

Family Law Act 1975 (Cth) s 60B, s 60CC
Evidence Act 1995 (Cth) s 140(2)

Briginshaw v Briginshaw (1938) 60 CLR 336
Frome & Frome (No 2) [2010] FamCA 1104
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
H v W (1995) FLC 92-598
Johnson & Page (2007) FLC 93-344
Korban & Korban [2009] FamCAFC 143
M & M (1998) 166 CLR 69
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
R v R (Children’s wishes) (2002) FLC 93-108

APPLICANT:

Dr Wallisham

RESPONDENT:

Ms Wallisham

FILE NUMBER:

BRC

8443

2009

DATE DELIVERED:

11 November 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

13 and 14 October 2011

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Frizelle

SOLICITORS FOR THE RESPONDENT:

Sempre Vero Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hodges

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fox

Barbara Fox Solicitor

Orders

BY CONSENT IT IS ORDERED

In the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

B spend time with and communicate with the mother at all times as may be agreed between the parties but at least:
a.     for the next 3 calendar months (December 2011 and January and February 2012) for 4 hours on each alternate weekend, on a Saturday or Sunday, but commencing nonetheless if possible on the third or fourth weekend in November 2011, to be supervised by Ms C, the father to pay the cost of Ms C's supervision
b.    for the following 3 calendar months (March, April and May 2012) continuing in the same alternate weekend cycle, for 5 hours on each alternate Sunday from 10.00am until 3.00pm to be supervised by Ms D, the maternal grandmother
c.     for the following 6 months (June, July, August, September, October and November 2012, and continuing until the commencement of the December 2012/January 2013 school holidays) in the same alternate weekend cycle, for 5 hours on each alternate Sunday from 10.00am until 3.00pm unsupervised, with all future time unsupervised
d.    in the Christmas school holidays December 2012/January 2013, continuing in the same alternate weekend cycle, from 5.00pm Thursday until 5.00pm Sunday
e.     from the commencement of the first school term in 2013 and continuing:
i.on alternate weekends, continuing in the same alternate weekend cycle, from 5.00pm Friday until 5.00pm Sunday
ii.commencing Easter 2013, half of the school holiday periods, the first half in or commencing in the odd years and the second half in or commencing in the even years, provided that if B is with the mother in the first half of any Christmas school holiday period…

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 Wallisham and Wallisham

Details

AGLC: Wallisham and Wallisham [2011] FamCA 873
Case: [2011] FamCA 873
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard proceedings between Dr Wallisham (the father) and Ms Wallisham (the mother) concerning their two sons, E (aged 15) and B (aged 10). The parties had separated some years prior and had engaged in multiple sets of proceedings regarding the children. In this instance, the parties had reached an agreement on many issues, including that the children would live with the father and that they would share equal parental responsibility for major long-term decisions concerning the children. The court was required to determine the remaining issues in dispute.

The primary legal issues before the court were the specific arrangements for the children spending time with and communicating with the mother, and the terms of the orders to be made. This included the phasing in of unsupervised time, communication protocols, and the mother's attendance at school functions. The court also considered the terms of a consent order regarding the children's schooling and the duration of a restriction on further applications for variation of the orders.

The court's reasoning was largely guided by the parties' agreement and the recommendations of the independent children's lawyer, with minor adjustments. The court applied the principles of the *Family Law Act 1975* (Cth), particularly concerning the best interests of the children, as outlined in sections 60B and 60CC. The court noted the positive development in the relationship between E and his mother, as evidenced by recent interactions. The court also considered the *Evidence Act 1995* (Cth) and the principles established in *Briginshaw v Briginshaw* regarding the standard of proof.

By consent, the court made orders detailing a phased approach to the children spending time with the mother, commencing with supervised contact and progressing to unsupervised time over several months. The orders also included provisions for liberal telephone communication, the mother's attendance at school functions, and the sharing of school information. Further orders addressed the children's schooling, parental responsibility for day-to-day care, and a two-year restriction on varying the orders without leave. The independent children's lawyer was to remain involved for 18 months.

Orders