Wells and Anor and Delmonte (No.2) - [2020] FCCA 2676

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLS & ANOR & DELMONTE (No.2)

[2020] FCCA 2676

Catchwords:
FAMILY LAW – Parenting – reconsideration of recent interim application with additional evidence – 3 children by 2 fathers – mother deceased – mother and children lived near maternal grandparents – independent evidence that maternal grandparents heavily involved in children’s lives –father of the 2 children subject to this application had limited involvement with children prior to mother’s death despite Court orders for time with – father removed younger child (11 years old) to another town and school post funeral – older child (16.5 years old) has left school and self-placed with grandparents – each party seeks both children live with them – third child of mother lives with grandparents and spends time with her father pursuant to orders in related matter – father alleges mother told him and his family members between 15-17 years ago that maternal grandfather sexually assaulted her as a child – no other evidence in support of that allegation – father’s evidence was that mother was not honest – father’s evidence was that mother may have been lying about that allegation – father enrols 11 year old in a new school – father puts in issue 11 year olds’ autism diagnosis made by multiple paediatricians over a number years – puts in issue need for placement in a special stream at school – father has 11 year old repeatedly interviewed about wishes – 11 year old says he wants to live with father – Held: Rice & Asplund test met by death of mother – 16.5 year old may live where he chooses – alleged allegations against maternal grandfather of limited weight – benefits of stability of return to prior school – and children remaining together – 11 year old child to return to grandparents and prior school pending further orders – 11 year old to spend alternate weekends and half school holidays with father – consequential orders.

Legislation:

Family Law Act 1975 (Cth), ss.69ZL, 65DA(2), 62B, 65C

Evidence Act 1995 (Cth), s.140

Cases cited:

Sheldon & Weir (No.4) [2010] FamCA 1214

Evelyn (1998) FLC 92-807

In the marriage of Rice & Asplund (1978) 6 FamLR 570

O'Brien & O'Brien [2017] FamCAFC 219

Marsden & Winch (2009) 42 Fam LR 1

Briginshaw v Briginshaw (1938) 60 CLR 336

Parks & Farmer [2012] FamCAFC 12

B & B (1993) FLC 92-357

First Applicant:

MR WELLS

Second Respondent:

MS WELLS

Respondent:

MR DELMONTE

File Number:

SYC 4835 of 2020

Judgment of:

Judge B Smith

Hearing date:

13 August 2020

Date of Last Submission:

2 September 2020

Delivered at:

Sydney

Delivered on:

7 September 2020

REPRESENTATION

Solicitors for the Applicants:

Hinde Ginges Boyd Lawyers

Solicitors for the Respondent:

Clearys Commercial Lawyers

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Parramatta Family Law

ORDERS

The child X born in 2009 (“the child”) live with the applicants (“the maternal grandparents”).
The respondent (“the father”) is required by injunction to deliver the child to the…

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

Case: [2020] FCCA 2676
Decision Date: 7 September 2020

CaseChat Overview and Summary

This case involved an application before Judge B Smith concerning the parenting arrangements for three children following the death of their mother. The maternal grandparents sought for the children to live with them, while the father of two of the children sought the same. The mother and children had lived near the maternal grandparents, who were independently evidenced as having been heavily involved in the children's lives. The father, despite prior court orders for time with the children, had limited involvement prior to the mother's death. He had subsequently removed the younger child (aged 11) to another town and school, while the older child (aged 16.5) had left school and gone to live with the grandparents. A third child, from a different father, lived with the grandparents and spent time with her father under separate orders.

The court was required to determine the living arrangements for the two children whose father was a party to this application, considering the impact of the mother's death, the wishes of the older child, and allegations made by the father concerning the maternal grandfather. The father alleged the mother had told him and his family years prior that the maternal grandfather had sexually assaulted her as a child, though there was no other supporting evidence. The father also questioned the mother's honesty and the necessity of a special school stream for the younger child's autism diagnosis, and had the younger child repeatedly interviewed about his wishes.

The court found that the death of the mother met the test for reconsideration of recent interim applications, as established in *Rice & Asplund*. The court afforded the 16.5-year-old child the autonomy to live where he chose. The alleged historical allegations against the maternal grandfather were given limited weight due to the lack of corroborating evidence and the father's own admissions about the mother's potential dishonesty. The court prioritised the benefits of stability for the children, including remaining together and returning to their prior school. Consequently, the 11-year-old child was ordered to live with the maternal grandparents and return to his previous school pending further orders, with specific provisions for time with the father, including alternate weekends and half of school holidays. The court also made consequential orders regarding communication, health, and non-denigration.

Orders

Orders of the court

The child X born in 2009 (“the child”) live with the applicants (“the maternal grandparents”).

The respondent (“the father”) is required by injunction to deliver the child to the residence of maternal grandparents on Wednesday 9 September 2020, at or about 4pm.

The child is to return to and attend B School from Thursday 10 September 2020.

The child may not continue attending C School after Wednesday 9 September 2020.

A copy of these Orders is to be given to B School and C School forthwith.

The child shall spend time with the father each alternate weekend from Friday at 4.30PM to Sunday at 4:30PM, commencing Friday 18 September 2020.

In the event the weekend the child is to spend time with the father is a long weekend, the time the child is to spend with the father is extended to include the additional public holiday.

The father is to collect the child from the residence of the maternal grandparents at the start of this time, and the father is to return the child to the residence of the maternal grandparents at the conclusion of this time, and also at the start and conclusion of the school holiday and special occasion times except where specifically stated otherwise in these orders.

The maternal grandparents are to do all things reasonably required to ensure that the child is ready to go with, and does go with, the father at the commencement of the times specified in these orders.

10.

The child is to communicate with the father by telephone or Facetime, or similar electronic means, each Tuesday and Thursday at 6PM and the maternal grandparents are to do all things reasonably necessary to ensure that the child is available to and does take part in these telephone calls.

11.

The child is to spend time with the father during school holidays as agreed between the parties, and failing agreement as follows:

(a) During the Term 3 school holidays from 4.30PM on Friday 2 October 2020 to 4PM on Saturday 10 October 2020.

(b) Commencing from the 2020/2021 end of year holidays and continuing in each holiday period after that, for half of each school holidays as agreed, and failing agreement for the first half of school holidays in odd numbered years and for the second half of the holidays in even numbered years

12.

The child spend time with the father on special occasions as agreed between the parties and failing agreement as follows:

(a) In the event that the child will otherwise spend the weekend with the maternal grandparents on Father's Day, the prior alternate weekend shall switch to that weekend, so the child will spend the weekend with the father on Father's Day, and then the weekends shall revert to the normal pattern.

(b) In relation to the child’s birthday:

(i) In the event that it falls on a school day then from after school until 7PM.

(ii) In the event the child’s birthday falls on a weekend day when the child is with the maternal grandparents then the child shall spent time with the father from 4pm to 7pm on that day.

(iii) In the event the child’s birthday falls on a weekend day when the child is with the father then the child shall spent time with the maternal grandparents from 4pm to 7pm on that day, in which case the maternal grandparents shall collect the child from the fathers residence at the commencement of and return the child to the father’s residence at the conclusion of the time.

(i) the child will spend Christmas day until 5pm with the party with whom he is then spending holiday time pursuant to these orders, and he shall then shall spend from 5pm Christmas day to 11am on 27 December with the other party.

13.

Each party shall keep the other advised of their residential address and contact telephone number and shall advise the other party within forty-eight (48) hours of any change to either residential address or telephone number.

14.

The child is to return to consulting, and is to consult as required, with his usual medical practitioners or allied health practitioners or counsellors, under the supervision of the maternal grandparents, and the maternal grandparents shall inform the father of the names and practice addresses of all current practitioners, and within 7 days of attendance of any practitioners or practices the child attends in future.

15.

Each party be permitted to liaise directly with the child’s school, sporting bodies, and medical practitioners or other treating health professionals to obtain any necessary information and/or documents about the child’s progress and each party shall provide and continue to provide the necessary authorities to facilitate this Order and a copy of this Order may be provided to any such body.

16.

Each party be entitled to attend any school or sporting function to which parents are invited to attend.

17.

Except in case of emergency, the father shall not take the child to any medical practitioners or other treating health professionals without the prior written consent of the maternal grandparents, and is to notify the maternal grandparents of any person on whom the child attends in future within 7 days of that attendance, and a copy of these orders may be provided to any medical or allied health practitioner or counsellor on whom the child attends at any time.

18.

Each party shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other party to visit the child if hospitalised.

19.

Each party is hereby restrained from denigrating the other party and/or any member of the other parties family or household to or in the presence or hearing of the child, or to or in the presence of D born in 2004 or of E born in 2011, and the parties shall use their best endeavours to ensure that no third party denigrates the other party and/or any member of the other parties family or household to, or in the presence or hearing of, the child or these other children named in this paragraph.

20.

The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 27 October 2020 at 12:30PM.

NOTES

21.

It is the intention of these Orders that, subject to certain practicalities that arise due to E is spending time with her father in the related matter and the Court’s view that the child and his siblings should spend some weekends and holiday time together and the need for E to be transported impacts on the maternal grandparents capacity to transport the child, that the time between the child and the father be so far as possible similar to that which was originally agreed to and reflected in the consent orders between the deceased mother and the father.

22.

The Court declines to make Orders in relation to the child D, other than the non-denigration order, due to his age. However, the Court encourages the maternal grandparents to encourage D to re-engage with the father and the paternal family, for D’s benefit and to facilitate X’s relationship with the father.

23.

The Court considers that given the number of parties and the complex issues and allegations this is a matter which should be transferred to the Family Court of Australia, together with the related matter SYC4298/2020 Vincent & Wells, pursuant to the Protocol.

24.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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