Withers & Russell - [2022] FedCFamC1F 372

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Withers & Russell [2022] FedCFamC1F 372

File number: CAC 223 of 2015

Judgment of: GILL J

Date of judgment: 26 May 2022

Catchwords: FAMILY LAW – CHILDREN – With whom the children live – Children demonstrating high trauma resulting from involvement in parental conflict – Rice & Asplund threshold met for reconsideration of parenting arrangement due to change in children’s circumstances and risk of their self-harm – Influence of the children’s views – Need to relieve children from pressure of current arrangements – International relocation – Where the mother lives in the USA – Where the children currently live with the father in Australia – Highly conflictual parental relationship – Sole parental responsibility granted to the mother.

Legislation:
Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 65DAA, 70M

Cases cited:
Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Phillips & Hansford (2019) 60 Fam LR 160

Rice and Asplund (1979) FLC 90-725

Division: Division 1 First Instance

Number of paragraphs: 512

Date of hearing: 22–26 February 2021 & 1–2 March 2021

Place: Canberra

Counsel for the Applicant: Mr J Haddock

Solicitor for the Applicant: Mazengarb Family Lawyers

Solicitor for the First Respondent: Self-represented Litigant

Solicitor for the Second Respondent: Self-represented Litigant

Solicitor for the Independent Children's Lawyer: Jeanine Lloyd & Associates
ORDERS

CAC 223 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS RUSSELL

Applicant

AND:
MR WITHERS

First Respondent

MS RUSSELL SNR

Second Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

26 MAY 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Ms Russell (“the mother”) has sole parental responsibility for the children A born in 2009 and B born in 2011 (collectively “the children”).
3.The children live with the mother on and from the last Sunday of the July 2022 school holidays in the Australian Capital Territory (“ACT”).
4.The mother is permitted to permanently relocate the children to City VV in the United States of America (“USA”).
5.The mother shall at all times keep Mr Withers (“the father”) informed, in writing, of the current residential address of the children and shall give the father 14 days’ notice, in writing, of a forthcoming change in that address.
6.Should there be any medical emergency involving the children, including but not limited to, serious illness, accident or hospitalisation, the parent with the care of the children at that time must, as soon as practicable:
(a)contact the other parent; and
(b)provide to the other parent all documentation and information in their control or possession regarding the medical emergency.

7.As soon as practicable each parent shall notify the other parent of the name of any medical practitioner, paediatrician or other specialist who treats the child whilst the child is in that parent’s care and shall authorise the treater to inform the other parent…

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 Withers & Russell

Details

AGLC: Withers & Russell [2022] FedCFamC1F 372
Case: [2022] FedCFamC1F 372
Decision Date

CaseChat Overview and Summary

The case involves the father and mother of two children who are seeking orders regarding the children's living arrangements and parental responsibility. The dispute has been brought before the court following previous orders made by Watts J, which the parties now seek to have altered. The father argues that the existing orders should remain undisturbed but, if altered, the children should spend less time with the mother and maternal grandmother. The mother and maternal grandmother seek for the children to live with the mother in the USA, with visitation rights for the father, and for parental responsibility to be equally shared.

The court was required to decide several legal issues, including whether the existing orders should be altered and, if so, what the new arrangements should be. The court had to consider the best interests of the children, the dysfunctional relationship between the parents, and the credibility of the parties' evidence. The court was also required to weigh the voluminous affidavit material provided by the parties, which was replete with inadmissible commentary and submissions.

The court exercised caution in dealing with the evidence of the parties, particularly in light of the previous findings of Watts J that the credit of the father and maternal grandmother was compromised, and that the mother had fabricated, embellished, and exaggerated evidence and events. The court considered the best interests of the children, the dysfunctional relationship between the parents, and the credibility of the parties' evidence in reaching its decision.

The court found that the existing orders should be altered, and made orders that the children live with the mother in the USA, with visitation rights for the father. The court also found that parental responsibility should be equally shared between the parties. The court's decision was based on the best interests of the children, the dysfunctional relationship between the parents, and the credibility of the parties' evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The dispute between the parties is somewhat layered. The father contends that there should, in accordance with the principles identified in Rice v Asplund,[1] be no disturbance of the Watts J orders, although, if there is a disturbance of those orders, he seeks restrictions to be placed upon the time the children spend with the mother and maternal grandmother. The mother and maternal grandmother seek that the children live with the mother under circumstances where she will live in the USA, and that there be orders for time with the father. The mother also seeks a change in parental responsibility such that it be equally shared.[1] (1979) FLC 90-725.The Watts J judgment In the previous proceedings, Watts J dealt with a myriad of factual contentions advanced by the parties. Without purporting to summarise the judgment in full, his Honour concluded that, despite a then superior relationship between the children and the mother it was necessary to reverse their living arrangements and provide for them to live with the father in order to maintain relationships with both of their parents. His Honour found this outcome would be compromised if the children were to live with the mother. Resonant with the issues raised in the current trial was Watts J’s further observation that the risks of psychological harm for the children arise from the “totally dysfunctional relationship” between the parents. As was identified by Watts J, the relationship between the parties is extremely poor. Their regard for each other can only be taken to be at the lowest level and is undoubtedly the source of many of the difficulties encountered by the children. That is an underlying circumstance that is also a feature of this trial. A further feature of that trial was that his Honour was unable to accept what the mother alleged without further support for the contentions, and that the credit of both the father and maternal grandmother were “compromised”. He rejected most of the allegations made by the mother in relation to the father, in particular rejecting that he had engaged in systemic coercive controlling family violence. His Honour also rejected allegations of violence against the father in relation to the children, finding that the mother had at various points fabricated, embellished and exaggerated evidence and events. Those credibility observations point to the exercise of caution in dealing with the evidence of the parties, a caution that was also indicated on the evidence given, for reasons set out below, in this trial even without recourse to his Honour’s comments.The conduct of the trial The mother appeared represented by experienced counsel, whilst the father and maternal grandmother, who is an experienced legal practitioner, were unrepresented. The parties relied upon voluminous affidavit material that was replete with inadmissible commentary and submissions. Pragmatically, the parties did not pursue comprehensive objections to the affidavit material. Such a process would have taken a significant amount of the time allocated for the trial.

Ratio Decidendi

Legal Principle Established

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File number:	CAC 223 of 2015
Judgment of:	GILL J
Date of judgment:	26 May 2022
Catchwords:	FAMILY LAW – CHILDREN – With whom the children live – Children demonstrating high trauma resulting from involvement in parental conflict – Rice & Asplund threshold met for reconsideration of parenting arrangement due to change in children’s circumstances and risk of their self-harm – Influence of the children’s views – Need to relieve children from pressure of current arrangements – International relocation – Where the mother lives in the USA – Where the children currently live with the father in Australia – Highly conflictual parental relationship – Sole parental responsibility granted to the mother.
Legislation:	Australian Passports Act 2005 (Cth) s 11 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 65DAA, 70M
Cases cited:	Jollie & Dysart [2014] FamCAFC 149 Marsden & Winch (No 3) [2007] FamCA 1364 Mazorski v Albright (2007) 37 Fam LR 518 Phillips & Hansford (2019) 60 Fam LR 160 Rice and Asplund (1979) FLC 90-725
Division:	Division 1 First Instance
Number of paragraphs:	512
Date of hearing:	22–26 February 2021 & 1–2 March 2021
Place:	Canberra
Counsel for the Applicant:	Mr J Haddock
Solicitor for the Applicant:	Mazengarb Family Lawyers
Solicitor for the First Respondent:	Self-represented Litigant
Solicitor for the Second Respondent:	Self-represented Litigant
Solicitor for the Independent Children's Lawyer:	Jeanine Lloyd & Associates

CAC 223 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS RUSSELL Applicant
AND:	MR WITHERS First Respondent MS RUSSELL SNR Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	26 MAY 2022