Waters and Desilva - [2014] FCCA 1220

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATERS & DESILVA

[2014] FCCA 1220

Catchwords:
FAMILY LAW – Discretionary parenting orders – change of residence application – issues of family violence – issues relating to clinical assessment of child’s anxiety and attachment to Father – peripatetic lifestyle of Father – consideration of issues relating to Aboriginal culture – both parents Aboriginal – regular periods of reconciliation between parents – best interest considerations.

Legislation:

Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Jones v Dunkel (1959) 101 CLR 298
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Sayer v Radcliffe (2013) 48 Fam LR 298
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439

Applicant:

MR WATERS

Respondent:

MS DESILVA

File Number:

CAC 483 of 2013

Judgment of:

Judge Neville

Hearing dates:

14 November & 6 December 2013

Date of Last Submission:

19 December 2013

Delivered at:

Canberra

Delivered on:

11 June 2014

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Longman Hill Solicitors, Orange

Counsel for the Respondent:

Solicitors for the Respondent:

Legal Aid Office, Canberra

ORDERS

The Mother have sole parental responsibility for the child, X (born (omitted) 2003);
The Mother is to keep the Father informed any major, long-term issues and major, relevant matters concerning the child;
The child live with the Mother, commencing on 5 July 2014;
The child attend (omitted) Primary School in (omitted), ACT;
That the child spend time with the Father as follows:
(a)For the first half of the terms 1, 2, & 3 holidays each year;
(b)For one half of the Christmas school holidays each year being the second half of the 2013/14 holidays and the first half of the 2014/15 holidays and alternating each year thereafter;
(c)For one weekend in (omitted) each term at times agreed between the parents;
(d)For up to 5 weekends a term in Canberra providing the Father gives the Mother 7 days’ notice;
That for the purposes of Orders 5a and 5b, the Father will collect the child from an agreed location in Canberra at the commencement of his time with the child and the Mother will collect the child from (omitted) at the conclusion of the time;
That for the purposes of Order 5c the Mother will deliver the child to, and collect the child from, the Father in (omitted);
That the Father is restrained from retaining the child in (omitted) at any time the child is meant to be attending school;
The matter is now finalised and will be immediately removed from the docket.

IT IS NOTED that publication of this judgment under the pseudonym Waters & Desilva is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL…

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 Waters and Desilva

Details

AGLC: Waters and Desilva [2014] FCCA 1220
Case: [2014] FCCA 1220
Decision Date: 11 June 2014

CaseChat Overview and Summary

In the matter of Waters and Desilva, heard before Judge Neville, the dispute concerned parenting orders for a child, X, born in 2003. The orders sought to establish arrangements for the child's residence, schooling, and time spent with each parent.

The court was required to determine the appropriate orders regarding parental responsibility, the child's primary residence, educational arrangements, and the specific schedule for the child to spend time with each parent. Additionally, the court needed to address any necessary restrictions on a parent's ability to retain the child.

Judge Neville made orders granting the Mother sole parental responsibility for the child, X, and stipulating that the child live with the Mother. The child was to attend a specific primary school in the ACT. The orders detailed a schedule for the child to spend time with the Father during school holidays and on weekends, with specific arrangements for collection and return. A restraint was placed on the Father from retaining the child in a particular location during school terms. The court declared the matter finalised.

Orders

Orders of the court

The Mother have sole parental responsibility for the child, X (born (omitted) 2003);

The Mother is to keep the Father informed any major, long-term issues and major, relevant matters concerning the child;

The child live with the Mother, commencing on 5 July 2014;

The child attend (omitted) Primary School in (omitted), ACT;

That the child spend time with the Father as follows:

(a) For the first half of the terms 1, 2, & 3 holidays each year;

(b) For one half of the Christmas school holidays each year being the second half of the 2013/14 holidays and the first half of the 2014/15 holidays and alternating each year thereafter;

(d) For up to 5 weekends a term in Canberra providing the Father gives the Mother 7 days’ notice;

That for the purposes of Orders 5a and 5b, the Father will collect the child from an agreed location in Canberra at the commencement of his time with the child and the Mother will collect the child from (omitted) at the conclusion of the time;

That for the purposes of Order 5c the Mother will deliver the child to, and collect the child from, the Father in (omitted);

That the Father is restrained from retaining the child in (omitted) at any time the child is meant to be attending school;

The matter is now finalised and will be immediately removed from the docket.

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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