Westley and Kersey - [2019] FamCA 223

FAMILY COURT OF AUSTRALIA

WESTLEY & KERSEY

[2019] FamCA 223

FAMILY LAW – CHILDREN – Best interests of the child– Parental responsibility – Where the parenting matter was determined on an undefended basis – Where the father’s drug use is of concern – Where the father’s behaviour constituted family violence – Where the child does not want to spend time with the father – Where it is in the best interests of the child not to spend time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC, 69ZX(3)

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Horan & Beckett [2010] FamCAFC 200
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Millicott & Millicott [2017] FamCA 826
Tate & Tate [2000] FamCA 1040

APPLICANT:

Mr Westley

RESPONDENT:

Ms Kersey

INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

FILE NUMBER:

PAC

5146

2016

DATE DELIVERED:

12 April 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No Appearance

SOLICITOR FOR THE RESPONDENT:

Mark Macdiarmid Family Law Specialist

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

Orders

That the mother have sole parental responsibility for the child X born … 2006.
That the child live with the mother.
That the child spend no time with the father.
That the mother shall be permitted to remove the child from the Commonwealth of Australia on any occasion she deems appropriate in the absence of consent of the father or otherwise.
Pursuant to section 11 of the Australian Passports Act 2005 the mother has liberty to apply to renew and to obtain an Australian passport for the child X born in 2006 in the absence of the consent of the father or otherwise, and insofar as it is necessary this order operates as an authority for her to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Westley & Kersey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC5146/2016

Mr Westley

Applicant

And

Ms Kersey

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the long term parenting arrangements for X who is 13 (“the child”). X is the only child of Mr Westley (“the father”) and Ms Kersey (“the mother”) who separated many years ago after a brief relationship.
The father has…

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 Westley and Kersey

Details

AGLC: Westley and Kersey [2019] FamCA 223
Case: [2019] FamCA 223
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the matter of *Westley and Kersey*, heard before Hannam J, the dispute concerned the parental responsibility and living arrangements for a child, X, born in 2006. The orders made by the court indicate a significant disagreement between the parents regarding the child's upbringing and future.

The central legal issues before the court were the determination of who should have sole parental responsibility for the child, where the child should live, and whether the child should have any contact with the father. Furthermore, the court was required to consider the mother's ability to remove the child from Australia and to obtain an Australian passport for the child, particularly in circumstances where the father's consent might be absent.

Hannam J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. Crucially, the court ordered that the child spend no time with the father. In relation to international travel, the mother was granted permission to remove the child from the Commonwealth of Australia whenever she deemed appropriate, irrespective of the father's consent. Additionally, pursuant to section 11 of the *Australian Passports Act 2005*, the mother was given liberty to apply for and obtain an Australian passport for the child, operating as an authority to do so in the absence of the father's consent.

Orders

Orders of the court

That the mother have sole parental responsibility for the child X born … 2006.

That the child live with the mother.

That the child spend no time with the father.

That the mother shall be permitted to remove the child from the Commonwealth of Australia on any occasion she deems appropriate in the absence of consent of the father or otherwise.

Pursuant to section 11 of the Australian Passports Act 2005 the mother has liberty to apply to renew and to obtain an Australian passport for the child X born in 2006 in the absence of the consent of the father or otherwise, and insofar as it is necessary this order operates as an authority for her to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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