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Weiss & Haddon

Weiss & Haddon

Case [2022] FedCFamC2F 1678 7 December 2022

Best Interests of the Child

Parental Responsibility

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Weiss & Haddon [2022] FedCFamC2F 1678

File number(s): DUC 29 of 2020

Judgment of: JUDGE OBRADOVIC

Date of judgment: 7 December 2022

Catchwords: FAMILY LAW – Final Parenting –– assessment of risk – best interest of children – parental responsibility – father’s lack of insight – allegations of family violence – relocation – mother to have sole parental responsibility – mother permitted to relocate children’s residences – children to spend time with father supervised initially – progression to unsupervised time – issue of passport without father’s consent – international travel – injunction against father as to non-denigration.

Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 102NA.

Cases cited: A & A: Relocation Approach [2000] FamCA 751
Banks & Banks [2015] FamCAFC 36
Bonnor & Loverdos [2021] FamCAFC 93
CDJ v VAJ [1998] HCA 67
Dieter & Dieter [2011] FamCAFC 82
Franklyn & Franklyn [2021] FamCAFC 112
Hakimi & Nasser (No.2) [2021] FamCAFC 88
Heaton v Heaton [2012] FamCAFC 139
Isles v Nelissen [2022] FedCFamC1A 97
Malcolm & Munro [2011] FamCAFC 16
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Slater & Light [2011] FamCAFC 1
U v U [2002] HCA 36; KB & TC [2005] FamCA 458

Division: Division 2 Family Law

Number of paragraphs: 98

Date of hearing: 21 and 22 November 2022

Place: Dubbo

Appearing for the Applicant: In person

Appearing for the Respondent: In person

Appearing for the Independent Children’s Lawyer: Ms Webb of Counsel

Solicitor for the Independent Children’s Lawyer: Osborne Legal
ORDERS

DUC 29 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WEISS

Applicant

AND:
MR HADDON

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

7 December 2022

THE COURT ORDERS THAT:
1.All prior parenting Orders are discharged.
2.The mother, Ms Weiss, shall have sole parental responsibility for the children X born in 2014 and Y born in 2016 (“the children”).
3.The children shall live with the mother.
4.The mother is permitted to relocate the residence of the children to City B, New South Wales.
5.Until the mother relocates the children’s residence to City B, the children shall spend time with the father:
(a)Supervised at an agreed and appropriately suitable contact service in City C, but failing agreement, D Contact Centre City C, for a period of two (2) hours each alternate weekend at times that can be facilitated by the contact service, with the father to bear the cost of such supervision;
(b)By telephone/video call each Wednesday between 5pm and 6pm with the father to initiate the call to the children’s iPad and the mother to ensure that the children have access to their iPad during this period; and
(c)For the purpose of Order 5(a) and within seven (7) days from the date of these Orders, the parties shall do all…

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 Weiss & Haddon

Details

AGLC: Weiss & Haddon [2022] FedCFamC2F 1678
Case: [2022] FedCFamC2F 1678
Decision Date

CaseChat Overview and Summary

The proceedings involved final parenting orders concerning the two children, X and Y. The mother sought sole parental responsibility and permission to relocate with the children from City C to City B. The father opposed the relocation and sought orders that the children live with him and spend time with the mother. The court found that the father had engaged in violence and coercive control towards the mother and that there were significant risks for the children in the father's care. The mother had taken steps to address her own mental health issues and had a support network in City B. The court determined that it was in the children's best interests for the mother to have sole parental responsibility, to be permitted to relocate with the children to City B, and for the children to spend limited time with the father. The children's time with the father was to be supervised until the youngest child turned 7 years old. The mother was permitted to apply for and hold passports for the children without the father's consent and to travel internationally with them. The final orders made by the court reflected these findings.

Orders