Watts & Watts

Case [2022] FedCFamC1F 649

Federal Circuit and Family Court of Australia

(DIVISION 1)

Watts & Watts [2022] FedCFamC1F 649

File number(s): SYC 8596 of 2020
Judgment of: BRASCH J
Date of judgment: 23 August 2022
Catchwords:

FAMILY LAW – INTERIM PARENTING – Where both parents sought orders for international travel with the children – Where father’s application for travel not pressed - Where both parties sought orders for Family Therapy - Orders made by consent.

FAMILY LAW – INTERIM PARENTING -  Where parents agree on new school for child but disagree when she ought commence there – Where one party proposes the child start at the new school in Grade 5 – Where the other party proposes Grade 7 - Where older sibling attends that school

FAMILY LAW – INTERIM PARENTING – Where the father sought orders for defined time with the children – Where there has been no material change in circumstances – Where Rice v Asplund (1979) FLC 90-725 not met.
Legislation: Family Law Act 1975 (Cth) ss 60B(2)(c), 60CC, 60CC(3)(a), 106A
Cases cited:

Edwards & Edwards (2006) FLC 93-306; [2006] FamCA 1230

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Line & Line (1997) FLC 92-729; (1996) 21 Fam LR 259

1           Poisat & Poisat [2014] FamCAFC 128;

Re G: Children’s Schooling (2000) 155 FLR 459; [2000] FamCA 462

Rice & Asplund (1979) FLC 90-725; (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Division: Division 1 First Instance
Number of paragraphs: 73
Date of hearing: 22 August 2022
Place: Sydney
Solicitor for the Applicant: Reid Family Lawyers
Solicitor for the Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers

ORDERS

SYC 8596 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS WATTS

Applicant
AND:

MR WATTS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

23 AUGUST 2022

BY CONSENT, THE COURT ORDERS:

Family Therapy

1.That the parties do all things and sign all documents to engage in family therapy with Mr B at the C Centre and that the mother ensure the children's attendance at such appointments at such duration and frequency as recommended by the therapist.

Passports and overseas travel to D Region

2.That:

(a)the parties meet the costs of express passport applications equally;

(b)if the father fails to pay his share of the passport application fees, then, these Orders authorise, the payment for the full amount of the passport application fees to be paid from the funds held in Fiona Reid Lawyers Pty Ltd (trading as Reid Family Lawyers trust account), earmarked for the parties Education Fund, and if paid in the first instance by the mother, to be reimbursed to her in full.

3.That pending the final determination of the matter, the passports be held in safe keeping by Mr E as the Independent Children's Lawyer and are not to be released to either party without written authority from both parties or an Order of the Court.

4.That:

(a)pursuant…

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AGLC
Watts & Watts [2022] FedCFamC1F 649
Case
[2022] FedCFamC1F 649
Decision Date

CaseChat Overview and Summary

The matter of Watts & Watts was before the Family Court, involving the parents, Ms Watts and Mr Watts, who were engaged in ongoing litigation over the care and custody of their three children, X, Y, and Z. Initially, consent orders were reached in January 2021, which specified the children’s visitation schedule with Mr Watts. However, the matter evolved into one of high conflict, leading to further disputes and applications by both parties. The latest application by Ms Watts, filed in June 2022, sought further amendments to the existing parenting orders, while Mr Watts filed his response in August 2022. The Independent Children’s Lawyer also provided an outline of the case and relied on an expert report.

The primary legal issues before the court were whether the existing parenting orders should be amended to further restrict Mr Watts' contact with the children and whether the presumption of equal shared parental responsibility should be altered. The court had to consider the statutory principles outlined in Part VII of the Family Law Act 1975, particularly the objects and principles of ensuring the best interests of the children, the presumption of equal shared parental responsibility, and the factors to be considered under section 60CC of the Act.

In determining the matter, the court considered the evidence presented by both parties, including affidavits and expert reports, and weighed the statutory principles against the specific circumstances of the case. The court also took into account the high-conflict nature of the relationship between the parents and the impact on the children. After careful deliberation, the court decided that the existing parenting orders should remain largely unchanged, with minor adjustments to the visitation schedule to better accommodate the children's needs. The court did not find sufficient grounds to alter the presumption of equal shared parental responsibility.

The final orders of the court maintained the existing parenting arrangements, with slight modifications to the visitation schedule to ensure the children's well-being. The court emphasised the importance of both parents having meaningful involvement in the children's lives and the need to protect the children from any potential harm.

Orders

Orders of the court

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Background

Background to the litigation

The Independent Children’s Lawyer (“the ICL”) provided a comprehensive case outline and set out his position on each of the live issues.Background Mr Watts (born in 1976) and Ms Watts (born in 1973) married early 2004 and separated in August 2020. Ms Watts moved out of the family home in late 2020 with the children. There are three children of the relationship, namely X (born in 2008), Y (born in 2010) and Z (born in 2013). On 7 January 2021, consent orders were reached for the children to live with Ms Watts and spend time with Mr Watts: in week one on Monday and Tuesday from 3.00 pm to 7.00 pm; and in week two on Saturday and Sunday from 9.00 am to 5.00 pm. I have already referred to the more recent time with order (the wishes order) of April 2022 above. I will not go into the further history of litigation in this matter, suffice to say it has been on foot for some time, being 2020, but the matters that were before me yesterday afternoon were quite narrow and discrete. Looking at both parties' material, it would be fair to describe this matter as one of high conflict. No one cavilled with that description when raised by me in court. Evidence The applicant mother relied upon:·Application in a Proceeding filed 17 June 2022;·Affidavit of Ms Watts filed 16 June 2022;·The Single Expert Report of Ms J dated 8 April 2022 (“the Family Report”); and·Outline of Case. The respondent father relied upon:·Amended Response to an Application in a Proceeding filed 12 August 2022 – I have a document of that date but it is not called ‘amended’. In any event, having worked through the orders sought by the father with him, I am satisfied I have the correct document before me;·Affidavit of Mr Watts filed 12 August 2022 (although actually filed 5 August 2022);·Outline of Case Document filed 18 August 2022; and·The father took me to a document contained within his tender bundle, being an email from a school principal, but I did not need to receive that into evidence as it was attached to the mother’s affidavit The ICL relied on the Single Expert Report of Ms J dated 8 April 2022. Principles I now turn to the principles that I must turn my mind to, as they fall within Part VII of the Family Law Act The orders sought by both parties fall within Part VII of the Family Law Act 1975 (Cth) (“the Act”). Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII as follows:60B Objects of Part and principles underlying it(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.The presumption of equal shared parental responsibility

Evidence

Evidence Before The Court

I will not go into the further history of litigation in this matter, suffice to say it has been on foot for some time, being 2020, but the matters that were before me yesterday afternoon were quite narrow and discrete. Looking at both parties' material, it would be fair to describe this matter as one of high conflict. No one cavilled with that description when raised by me in court. Evidence The applicant mother relied upon:·Application in a Proceeding filed 17 June 2022;·Affidavit of Ms Watts filed 16 June 2022;·The Single Expert Report of Ms J dated 8 April 2022 (“the Family Report”); and·Outline of Case. The respondent father relied upon:·Amended Response to an Application in a Proceeding filed 12 August 2022 – I have a document of that date but it is not called ‘amended’. In any event, having worked through the orders sought by the father with him, I am satisfied I have the correct document before me;·Affidavit of Mr Watts filed 12 August 2022 (although actually filed 5 August 2022);·Outline of Case Document filed 18 August 2022; and·The father took me to a document contained within his tender bundle, being an email from a school principal, but I did not need to receive that into evidence as it was attached to the mother’s affidavit The ICL relied on the Single Expert Report of Ms J dated 8 April 2022. Principles I now turn to the principles that I must turn my mind to, as they fall within Part VII of the Family Law Act The orders sought by both parties fall within Part VII of the Family Law Act 1975 (Cth) (“the Act”). Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII as follows:60B Objects of Part and principles underlying it(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.The presumption of equal shared parental responsibility Section 61DA of the Act relevantly provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Albeit of course those presumptions can be rebutted or otherwise found not to be in the children’s best interests. Best interests of the child Section 60CC of the Act sets out the list of matters that the court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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