Whitlock & Howerton - [2023] FedCFamC2F 583

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitlock & Howerton [2023] FedCFamC2F 583

File number(s): TVC 897 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 24 May 2023

Catchwords: FAMILY LAW – parenting – relocation – one child aged 8 – child with autism spectrum disorder – severe developmental delay – child requires speech therapy, physiotherapy and occupational therapy – child has behavioural issues – living with the father in City B, South Australia – mother lives in Town C, New South Wales – mother has moved multiple times during proceedings – both parties have a history of illicit substance use – father still using cannabis – allegations of family violence – allegations of excessive discipline – risk to the child – father has difficulties with reading and writing – ability of parties to meet the child’s needs – commitment to parenting – relocation of child not allowed – injunctions with respect to family members

Legislation: Family Law Act 1975 (Cth) s 60CA, 60CC

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336

Godfrey & Sanders [2007] FamCA 102

Division: Division 2 Family Law

Number of paragraphs: 109

Date of last submission/s: 5 May 2023

Date of hearing: 1-5 May 2023

Place: Adelaide

Counsel for the Applicant: Ms Damon

Solicitor for the Applicant: Nicholas James Lawyers

Counsel for the Respondent: Ms Betro

Solicitor for the Respondent: Tindall Gask Bentley

Counsel for the Independent Children’s Lawyer Mr Praolini

Solicitor for the Independent Children’s Lawyer Legal Services Commission
ORDERS

TVC 897 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WHITLOCK

Applicant

AND:
MR HOWERTON

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE JENKINS

DATE OF ORDER:

24 MAY 2023

THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The father have sole parental responsibility for the child X born 2014 save that prior to making any long term decisions for X, including changes to his school or major medical decisions, the father notify the mother in writing prior to that decision being made, consult the mother as to her views on the decision and endeavour to reach an agreement with the mother. In the event the parties are unable to agree the father be thereafter at liberty to make that decision without the consent of the mother.
3.X live with the father.
4.X spend time with the mother as follows:
(a)During the school term, on the weekend of the fifth week of the school term, from the conclusion of school Friday until the commencement of school Monday with such time to take place at City B;
(b)For 65% of each school term holiday period at times to be agreed between the parties and failing agreement as follows:
(i)During all short school holidays with such time to commence on the first Saturday of the school holiday period, and conclude on the second Wednesday of that school holiday period (i.e. - 11 consecutive nights);
(ii)During long school holiday periods:
A.In the 2023/24 long holidays and…

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: Whitlock & Howerton [2023] FedCFamC2F 583
Case: [2023] FedCFamC2F 583
Decision Date

CaseChat Overview and Summary

The matter before the court involves a dispute over the care of an eight-year-old child with autism spectrum disorder and developmental delays. The child, X, has been living with the father in City B, South Australia, while the mother resides in Town C, New South Wales. The mother seeks an order for X to live with her, while the father seeks for X to remain with him. The court was required to decide whether it was in the child's best interests to relocate to the mother's care, considering the factors outlined in section 60CC of the Family Law Act 1975 (Cth).

The court found that while the mother's proposed care arrangement would allow for a meaningful relationship with X, the father's care had resulted in substantial improvements in X's school attendance, behaviour, and overall wellbeing. The father had also demonstrated his commitment to X's needs and was actively engaged with X's teachers and treating health professionals. The court was also concerned about the mother's history of illicit substance use, inconsistent evidence, and potential instability in her housing situation. Additionally, the court found that X was not at an unacceptable risk of harm in the father's care.

Based on the evidence presented, the court determined that it was in X's best interests to remain in the father's care in City B. The court made orders for the father to have sole parental responsibility, with the mother having input on major long-term decisions for X. The court also ordered that X spend time with the mother during school holidays and via video communication, and imposed various injunctions on the parties to protect X's welfare.

Orders