FAMILY LAW – Parenting – application to vary final parenting orders – final parenting orders made by consent in 2012 – where time allowed for children to spend time with their father under 2012 orders was at lower end of spectrum – respondent refused any latitude respecting 2012 orders – parties’ relationship since separation conflictual and entrenched – parties’ communication fraught – applicant made litany of generalised and unsupported complaints against respondent – respondent’s communication with applicant intractable and goading – matter extensively litigated since 2009 – extensive expert evidence – – where mother having sole parental responsibility has refused to involve father in decisions regarding children – financial and emotional costs – emotional cost of litigation having derivative impact upon the children – where family report writer has had extensive involvement with the family since 2009 – where children’s wishes expressly stated to family report writer – where children, now adolescents, have ability and desire to express their wishes – children aware of tension and conflict between parents – children want status quo to be maintained – family report writer supported children’s wishes – father’s history of depression and alcohol abuse – respondent alleges applicant has a narcissistic personality disorder – expert evidence does not support narcissistic personality disorder – depression now in remission – experts consider parties no risk to the children.
APPLICABLE PRINCIPLES – Children’s best interests as paramount consideration – consideration of principles in Rice and Asplund – threshold issue whether there has been significant change since final orders made in 2012 – respondent sought dismissal with indemnity costs on the basis of no change in circumstances – necessity to be able to compare and contrast evidence – examination of earlier decision and record – nature of orders now sought are relatively confined – wishes of the children – sufficiently material change shown to re-consider existing parenting orders in all of the circumstances – children to benefit from meaningful relationship and spending time with both parents – children not at risk from serious psychological or physical harm – significant weight attached to wishes expressed by the children – neither parent lacks parental capacity to provide – no recent allegations of family violence – importance of finality of litigation – prescriptive orders appropriate – Court not obliged to accept either party’s proposal – Court satisfied it is in the children’s best interests to vary parenting orders – consecutive spend time with father over summer holiday period extended – application otherwise dismissed.
[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.
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Details
AGLC
WATSON & WATSON [2018] FCCA 1791
Case
[2018] FCCA 1791
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Judge A Kelly considered an application by a father to vary final parenting orders made by consent in 2012. The dispute concerned the time the children would spend with their father, with the father alleging the mother had refused any latitude regarding the existing orders. The parties' relationship since separation had been conflictual and entrenched, characterised by fraught communication and generalised, unsupported complaints by the applicant father, and intractable, goading communication from the respondent mother. The matter had been extensively litigated since 2009, involving significant expert evidence and considerable financial and emotional costs, which had a derivative impact on the children.
The court was required to determine whether there had been a significant change in circumstances since the final parenting orders were made in 2012, a threshold issue raised by the respondent mother who sought dismissal of the application with indemnity costs. The court also had to consider the paramount consideration of the children's best interests, applying principles from cases such as *Rice* and *Asplund*. This involved examining the wishes of the children, who were now adolescents with the ability and desire to express their views, and were aware of the tension between their parents. The court also had to assess the father's history of depression and alcohol abuse, which was now in remission, and the mother's alleged narcissistic personality disorder, which expert evidence did not support.
Judge Kelly found that a sufficiently material change in circumstances had been shown to re-consider the existing parenting orders. The court attached significant weight to the wishes expressed by the children, who wanted the status quo to be maintained, and noted that the children were not at risk of serious psychological or physical harm from either parent. While acknowledging the importance of the finality of litigation, the court was satisfied that it was in the children's best interests to vary the parenting orders to allow for a meaningful relationship and time spent with both parents. The court was not obliged to accept either party's proposal, and ultimately ordered that the consecutive time the children spent with their father over the summer holiday period be extended. The application was otherwise dismissed.
Orders
Orders of the court
1.
Pursuant to s 65D of the Family Law Act 1975 (Cth), paragraph 2(e) of the Order made on 5 September 2012 be discharged and in lieu thereof, the following paragraph be inserted in that Order:
2(e) During the long Summer holiday period, for three weeks of consecutive duration, such time to commence at 10.00am on 1 January in each year;
2.
The application otherwise be dismissed.
3.
By 4.00pm on Tuesday, 24 July 2018, the parties file and serve any submissions with respect to the costs of this application (not exceeding 5 pages, 1.5 spacing, 12 font).