WATTS & LORRECK - [2019] FamCA 615

FAMILY COURT OF AUSTRALIA

WATTS & LORRECK

[2019] FamCA 615

FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the children – Relocation – Meaningful relationship – Where the father seeks orders that the children remain living with him in Canberra – Where the mother seeks that the children return to live with her in B Town – Where the Independent Children’s Lawyer seeks orders that the children live with the father and spend time with the mother – Where there has been a protracted history of litigation between the parties – Where the children are of an age and maturity that the view’s they have expressed are given significant weight –Where the mother alleges that the father has adversely impacted upon the mother’s relationship with the children – Where the Court finds it is in the best interests of the children to live with the father – Orders made in accordance with those sought by the Independent Children’s Lawyer for the children to live with the father in Canberra and spend time with the mother.

Family Law Act 1975 (Cth), s 43, 60B, 60CA, 60CC, 65DA, 65DAC, 65DAA.
Evidence Act 1995 (Cth), s 140.

Cotton & Cotton (1983) FLC 91-330
Dundas & Blake [2013] FamCAFC 133
Finton & Kimble [2017] FCWA 106
Jurchenko & Foster [2014] FamCAFC 127
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Sigley v Evor (2011) 44 Fam LR 439
Stott & Holgar and Anor [2017] FamCAFC 152
VR & RR (2002) 29 FamLR 39

APPLICANT:

Mr Watts

RESPONDENT:

Ms Lorreck

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid ACT

FILE NUMBER:

CAC

2009

DATE DELIVERED:

4 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

25-28 March 2019

REPRESENTATION

THE APPLICANT APPEARING IN PERSON:

Mr Watts

COUNSEL FOR THE RESPONDENT:

Mr Moffett

SOLICITOR FOR THE RESPONDENT:

Dillon-Smith Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor of Legal Aid ACT

Orders

That all previous parenting orders be discharged.
That Mr Watts (“the father”), have sole parental responsibility for X born … 2002 and Y born … 2007 (“X and Y”).
To avoid doubt, sole responsibility for the purpose of Order (2) includes: responsibility for making decisions as to whether the children engage in overseas travel; and the circumstances in which that travel is undertaken.
That X and Y live with their father.
Notwithstanding Order (2), the father shall advise Ms Lorreck (“the mother”), of all contact details for any treating health professionals and school and college contact details for X and Y.
These Orders shall serve as an authority to any health professional or educational facility that X or Y may attend to provide information to either parent on that parent's request.
That X spend time with and communicate with his mother in accordance with his wishes.
That until Y attains the age of 16 years, he spend time with his mother as agreed between the parties and…

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 WATTS & LORRECK

Details

AGLC: WATTS & LORRECK [2019] FamCA 615
Case: [2019] FamCA 615
Decision Date: 4 September 2019

CaseChat Overview and Summary

In the matter of Watts & Lorreck, the court considered a dispute between the father, Mr. Watts, and the mother, Ms. Lorreck, concerning the living arrangements and time spent with their two children, X and Y. The father sought orders for the children to reside with him in Canberra, while the mother sought their return to live with her in B Town. The Independent Children’s Lawyer recommended that the children live with the father and spend time with the mother.

The central legal issues before the court were the best interests of the children, particularly in the context of a relocation dispute, and the importance of maintaining a meaningful relationship between the children and each parent. The court was required to consider the expressed views of the children, who were of an age and maturity to have their wishes given significant weight, and to assess allegations made by the mother regarding the father's impact on her relationship with the children.

The court found that it was in the best interests of the children to live with the father in Canberra. This decision was informed by the children's expressed wishes and a comprehensive assessment of their overall welfare. The court discharged previous parenting orders and made new orders reflecting the Independent Children’s Lawyer’s recommendations.

The final orders stipulated that the father would have sole parental responsibility for X and Y, with the children to live with him. The mother was granted specific arrangements for spending time with and communicating with the children, with provisions for their travel, costs, and communication methods. Both parents were also ordered to speak respectfully of each other in the children's presence and to avoid exposing the children to family violence or disrespectful commentary.

Orders

Orders of the court

That all previous parenting orders be discharged.

That Mr Watts (“the father”), have sole parental responsibility for X born … 2002 and Y born … 2007 (“X and Y”).

To avoid doubt, sole responsibility for the purpose of Order (2) includes: responsibility for making decisions as to whether the children engage in overseas travel; and the circumstances in which that travel is undertaken.

That X and Y live with their father.

Notwithstanding Order (2), the father shall advise Ms Lorreck (“the mother”), of all contact details for any treating health professionals and school and college contact details for X and Y.

These Orders shall serve as an authority to any health professional or educational facility that X or Y may attend to provide information to either parent on that parent's request.

That X spend time with and communicate with his mother in accordance with his wishes.

That until Y attains the age of 16 years, he spend time with his mother as agreed between the parties and at the location agreed between the parties and, in the absence of agreement being reached, Y shall spend time with his mother as follows:

(a) During school term time for a maximum of two occasions for up to seven consecutive days in Canberra, provided that the mother provides the father with 14 days written notice of her intention to spend this time in Canberra;

(b) If the mother is spending time with Y in accordance with Order 8(a), she is to ensure that he attends all his school and extra-curricular activities occurring during this time;

(d) For one half of the ACT gazetted school holidays, being the first half in even numbered years and the second half in odd numbered years;

(e) For the purpose of Order 8(d), the father shall be responsible for the costs of the flights for the Term 2 and Term 4 school holidays and the mother shall be responsible for the cost of the flights for the Term 1 and Term 3 school holidays; and

(f) The mother be at liberty to communicate with Y, each Tuesday and Sunday between 7:00pm and 7:30pm, when he is not in her care. The father is to ensure that Y is available to speak to his mother in private.

That once Y attains the age of 16 years, he shall spend time with and communicate with his mother in accordance with his wishes.

10.

The father shall facilitate both X and Y communicating with their mother at all reasonable times when they are in his care, including ensuring that mobile phones are charged and Skype or FaceTime is available.

11.

Both parents are to speak respectfully of each other in the presence or hearing of X or Y and neither parent will allow any other third party to speak disrespectfully of the other parent in the presence or hearing of X or Y.

12.

That neither parent expose X or Y to family violence including verbal arguments.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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