Webster and Cody (No 2) - [2012] FamCA 638

FAMILY COURT OF AUSTRALIA

WEBSTER & CODY (NO. 2)

[2012] FamCA 638

FAMILY LAW - CHILDREN – Where an application by father for children to relocate to the United States is dismissed – Children’s best interests – Expert evidence – Orders for the children to live with the mother – Where a child has a poor relationship with the father - Where regular holiday time is ordered for the children to spend time with the father on a graduated basis – Parental responsibility - Where there is poor communication between the parties – Where each parent is to have parental responsibility but that it need not be exercised jointly - Where the mother has sole parental responsibility in the relation to decisions about the children’s education.

Family Law Act 1975 (Cth) ss 60AA, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA

Goode & Goode (2006) FLC 93-286.

APPLICANT:

Mr Webster

RESPONDENT:

Ms Cody

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1571

2010

DATE DELIVERED:

27 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

13-17 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

SOLICITOR FOR THE APPLICANT:

Meyer Partners

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

York Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That excluding orders made by this Court on 20 March 2012, all prior parenting orders in relation to the children T born … February 1998 and L born … July 2000 (“the children”) are discharged.
That the children live with the mother.
That the children spend time with the father as follows:
(a)in Australia for at least one week during the school holidays at the end of Term 3 2012, between 9.00 am and 6.00 pm each day, together with three periods of overnight time but not being consecutive days unless requested by the children;
(b)unless by 29 August 2012 different dates are agreed, the father shall spend time with the children at the end of Term 3 2012 from and including 21 September 2012 and 28 September 2012 with the father to collect and return the children at the mother’s home;
(c)during the Christmas 2012/2013 holidays from 23 December 2012 until 14 January 2013 in Town V in the United States and to implement this order:
(i)the mother and children shall depart Sydney for Los Angeles by air no later than Thursday, 20 December 2012, and
(ii)the children leave Town V on 14 January 2013;
(d)during that period:
(i)the children spend time with the father for the first five (5) days and nights starting at 10.00 am on the first day (23 December 2012) and conclude at 6.00 pm on the last day (28 December 2012);
(ii)the children spend time with the mother from 6.00 pm on 28 December 2012 until 6.00 pm on 30 December 2012;
(iii)the children spend time with the father for the next seven (7) days…

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 Webster and Cody (No 2)

Details

AGLC: Webster and Cody (No 2) [2012] FamCA 638
Case: [2012] FamCA 638
Decision Date

CaseChat Overview and Summary

In *Webster & Cody (No. 2)*, the Family Court of Australia considered an application by the father, Mr Webster, for his two children to relocate to the United States. The mother, Ms Cody, was the respondent. The Independent Children’s Lawyer was represented by Legal Aid NSW. The court was required to determine the children's best interests in relation to the proposed relocation and to make final parenting orders.

The primary legal issue before the court was whether the father's application for the children to live with him in the United States should be granted, with the overarching consideration being the children's best interests as mandated by the *Family Law Act 1975* (Cth). The court also had to consider the existing strained relationship between the children and the father, the poor communication between the parents, and the expert evidence presented regarding the children's welfare.

Justice Ryan dismissed the father's application for relocation, finding that the children's best interests were served by them continuing to live with their mother in Australia. The court noted the poor relationship the children had with their father and ordered a graduated basis for the children to spend time with him. While both parents were granted parental responsibility, it was stipulated that this responsibility need not be exercised jointly, and the mother was given sole parental responsibility for educational decisions. The court's reasoning was informed by the history of the parties' separation, the mother's previous relocation of the children to Australia with the father's consent, and the impact of these decisions on the children's relationships.

The court made orders for the children to live with the mother and detailed specific arrangements for the children to spend time with the father, both in Australia and during holidays in the United States. These orders included provisions for travel, communication, and the sharing of information regarding the children's well-being. The court also made orders restraining the parents from discussing the proceedings with the children and from criticising each other in their presence, and directed the Independent Children's Lawyer to explain the orders to the children.

Orders