FAMILY LAW – parenting – competing residence applications - where a five year old child has been denied a meaningful relationship with one parent by the other – refusing to promote a reintroduction of parental relationship in accordance with interim orders culminating in recent interstate relocation - where a material possibility of psychological and/or emotional harm to the child is posed by the mother - where no risk of significant harm in the father’s household is found - careful weighing up of evidence required - extensive supports required to assist the child during transition – to encourage positive social development and reduce anxiety – encourage and develop a meaningful relationship with both parents – change of residence appropriate with supports in place – restraints to ameliorate risk of child’s exposure to conflict - best interests of child
Grace Family Lawyers (at defended hearing) and Cragg Braye & Thornton (at judgment delivery)
Counsel for the Independent Children's Lawyer:
Ms Van Oosterom
Solicitor for the Independent Children's Lawyer:
Harpers Legal
ORDERS
NCC 2354 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR WEEKES
Applicant
AND:
MS KENDRICK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS THAT:
1.All previous Orders relating to the child, X born in 2017 are discharged.
2.The applicant, MR WEEKES (‘the father’) shall have sole parental responsibility for X.
3.In the exercise of his sole parental responsibility…
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.
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Details
AGLC
Weekes & Kendrick [2023] FedCFamC2F 358
Case
[2023] FedCFamC2F 358
Decision Date
CaseChat Overview and Summary
This case involved a parenting dispute between Mr Weekes and Ms Kendrick, the parents of a five-year-old child, X. The father sought sole parental responsibility for X, while the mother sought to retain primary care. The Independent Children's Lawyer (ICL) was appointed to represent the best interests of X. The court considered various factors, including the risk of harm to X, the benefit of a meaningful relationship with both parents, and the impact of the parents' conflict on X. The court found that the mother had not promoted a meaningful relationship between X and the father, resulting in X having no working memory of her father and being fearful of him. The mother's negative attitudes towards the father had caused X to develop anxious attachment and behavioural issues. The court concluded that it was in X's best interests to live with the father, subject to a moratorium on contact with the mother for eight weeks to allow for a smooth transition. After the moratorium, X would spend regulated time with the mother, subject to the mother's geographical location. The court also made various orders to manage communication between the parties and to protect X from exposure to conflict. In relation to costs, the court ordered each party to contribute half of the ICL's costs, finding that the circumstances of the case made it just to do so.