Winters & Robbs - [2022] FedCFamC2F 298

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Winters & Robbs [2022] FedCFamC2F 298

File number(s): MLC 11835 of 2019

Judgment of: JUDGE HARLAND

Date of judgment: 17 March 2022

Catchwords: FAMILY LAW – parenting – child’s time with the father – weight to be given to the child’s views – father’s insight – child’s anxiety

Legislation: Family Law Act 1975 (Cth) 61DA(1) pt VII, ss 4AB, 60B, 60CA, 60CC, 64, 65D, 65DAA, 68Q .

Cases cited:
Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] 240 CLR 461

Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 160

Date of hearing: 21 and 22 February 2022

Place: Melbourne

Counsel for the Applicant: Mr Oldham

Solicitor for the Applicant: Vernon Da Gama and Associates

Counsel for the Respondent: Ms Damon

Solicitor for the Respondent: VM Family Lawyers
ORDERS

MLC 11835 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WINTERS

Applicant

AND:
MS ROBBS

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

17 MARCH 2022

THE COURT ORDERS BY CONSENT THAT:
Parental Responsibility
1.All previous parenting order be discharged.
2.Parental responsibility be allocated between the parties in the following manner:
(a)The parents have shared parental responsibility for X born in 2012 (“X”) in relation to major long-term issues about:
(i)X’s name;
(ii)X’s religious and cultural upbringing.

(b)The Mother have sole parental responsibility for X in relation to all other major long-term issues, including health and education (both current and future).

3.For the purpose of order 2(b) above:
(a)before any such long-term decisions are made in respect of the X’s health or education:
(i)the Mother shall advise the Father by email of her proposal relating to X;
(ii)if the Father wishes to comment on the Mother’s proposal (or if the Father has any proposal he wishes to make relating to X on this issue) he shall, within seven (7) days after the date of the Mother’s email, advise the Mother by one email (to the email address from which the Mother sent her communication) of his views;
(iii)upon receipt of any comment or proposal by the Father, the Mother shall give consideration to the Father’s views.

4.X live with the Mother.
5.Changeovers that do not take place at the conclusion of X’s dance class will take place outside the mother’s home.
6.Each party be permitted to have a support person attend changeover with them, however, the support person is to remain in the car or remain in the home, whichever applies, during changeover.

Restraints
7.The Father and Mother and their servants and agents be and are hereby restrained from:
(a)Denigrating the other parent or their family in the presence and/or hearing of X or permitting anyone else to do so;
(b)Using X to pass messages between the parties;
(c)Discussing these proceedings in the presence and/or hearing of X, save for explaining to X the effect of the orders and what time…

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 Winters & Robbs

Details

AGLC: Winters & Robbs [2022] FedCFamC2F 298
Case: [2022] FedCFamC2F 298
Decision Date

CaseChat Overview and Summary

This case involved a parenting dispute between Mr Winters (the father) and Ms Robbs (the mother) regarding their 9-year-old daughter, X. The parents separated when X was a few months old, and X has lived primarily with the mother since then. Both parents have since re-partnered, and the mother has a new child with her partner, Mr E. The father sought an increase in his time with X, while the mother sought to limit his time due to X's distress and anxiety during visits with him. The court considered evidence from both parents, X, and a family consultant. The court found that X experiences significant distress and anxiety during time spent with the father, and that the father lacks insight into how his behaviour affects X. The father's evidence often contradicted X's and the mother's accounts of events and interactions. The court held that it is in X's best interests to limit the father's time with her while he works on developing insight and addressing his personal functioning issues. The court made the interim parenting orders made at the end of the trial as final orders, including limited daytime time with the father on alternate weekends and during certain holidays. The court also made orders regarding parental responsibility, changeovers, communication, and other matters.

Orders