Whitfield and Donovan - [2017] FCCA 73

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITFIELD & DONOVAN

[2017] FCCA 73

Catchwords:
FAMILY LAW – Parenting – where there are serious allegations of domestic and family violence – where the father has not spent time with the children for a period in excess of three years – where expert evidence suggests that there may be serious negative emotional consequences for the mother and therefore the children should orders be made for the father to spend time with the children – where consideration needs to be given to the principals as first enunciated in Russel v Close – where orders should be made that reflect the paramount consideration being the best interests and welfare of the children.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE

Cases cited:
Lansa & Clovelly [2010] FamCA 80
Heath & Hemming (No 2) [2011] FamCA 749
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell & Chappell (2008) FLC 93-382
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
MRR v GR (2010) 240 CLR 461

In the Marriage of N v S (1996) FLC 92-655
W v W (abuse allegations: unacceptable risk) (2005) FLC 93-235
M v M (1988) 166 CLR 69
A v A [1976] VR 298
In the Marriage of M (1987) 11 Fam LR 765
B v B (Access) [1986] FLC 91-758
Leveque v Leveque (1983) 54 BCLR 164
Re G (a minor) [1987] 1 WLR 1461
Harridge & Harridge [2010] FamCA 445
Blinko & Blinko [2015] FamCAFC 146
Russell v Close (unreported Full Court, 25 June 1993)
N and S and the Separate Representative (1996) FLC 92-655
Sedgley & Sedgley (1995) FLC 92-623

Unacceptable Risk – A Return to Basics, Hon John Fogarty AM (2006) 20 Australian Journal of Family Law 249

Applicant:

MR WHITFIELD

Respondent:

MS DONOVAN

File Number:

BRC 504 of 2015

Judgment of:

Judge Coker

Hearing dates:

12, 13 & 14 July 2016

Date of Last Submission:

7 December 2016

Delivered at:

Townsville

Delivered on:

19 January 2017

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms McDiarmid

Solicitors for the Respondent:

Springwood Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Cameron

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2006 and Y born (omitted) 2009 (herein after referred to as ‘the children’) including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
That the children live with the mother.
That within fourteen (14) days of receiving a written request by the mother, the father shall do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport…

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 Whitfield and Donovan

Details

AGLC: Whitfield and Donovan [2017] FCCA 73
Case: [2017] FCCA 73
Decision Date: 19 January 2017

CaseChat Overview and Summary

In *Whitfield and Donovan*, heard by Judge Coker, the dispute concerned the parental responsibility and living arrangements for two children, X and Y. The mother sought sole parental responsibility for long-term decisions regarding the children's care, welfare, and development, including their education, religious and cultural upbringing, health, and name. She also sought orders for the children to live with her.

The court was required to determine whether to grant the mother sole parental responsibility for long-term decisions and whether the children should live with her. Additionally, the court considered the father's role in the children obtaining passports, specifically addressing the necessity of his consent and the potential for a passport to be issued notwithstanding his refusal or failure to act.

Judge Coker ordered that the mother have sole parental responsibility for long-term decisions concerning the children's care, welfare, and development, encompassing their education, religious and cultural upbringing, health, and name. The court further ordered that the children live with the mother. In relation to passports, the father was directed to provide all necessary consent and cooperation within fourteen days of a written request from the mother. Crucially, the court stipulated that if the father refused or failed to comply, a passport would issue without his signature, notwithstanding section 11(1) of the *Australian Passports Act 2005*. All other extant applications were dismissed.

Orders

Orders of the court

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2006 and Y born (omitted) 2009 (herein after referred to as ‘the children’) including but not limited to:

(a) a child’s education (both current and future);

(b) child’s religious and cultural upbringing;

(d) a child’s name;

That the children live with the mother.

That within fourteen (14) days of receiving a written request by the mother, the father shall do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport to issue in the names of the children.

That in the event that either the father refuses or fails to do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport to issue in the names of the children then, notwithstanding s.11(1) of the Australian Passports Act 2005, a passport shall issue without requiring the father to sign the children’s passport/passport renewal applications.

That all extant applications be otherwise dismissed.

That each party be granted liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders and in respect of costs.

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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