Wootton and Hillier - [2009] FMCAfam 1513

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOOTTON & HILLIER

[2009] FMCAfam 1513

FAMILY LAW – Children – parenting – ongoing conflict between the parents – where both parties seek that a parenting plan be set aside – where a psychologist report is to be prepared.

Family Law Act 1975, ss.61DA, 63C, 65DAA

Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
Mazorski v Albright (2007) 37 Fam LR 518
Vasser v Taylor-Black (2007) 37 Fam LR 256

Applicant:

MS WOOTTON

Respondent:

MR HILLIER

File Number:

CAC 2423 of 2007

Judgment of:

Neville FM

Hearing date:

17 June 2009

Date of Last Submission:

17 June 2009

Delivered at:

Canberra

Delivered on:

23 June 2009

REPRESENTATION

Solicitors for the Applicant:

Phelps Reid

Solicitors for the Respondent:

Watts McCray McGuiness Eley

ORDERS

The Parenting Plan dated 21^st May 2007 be set aside.
The parents will have equal shared parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2004.
The children will live with the Mother.
The children will spend time with their Father as follows:-
(a)Each alternate weekend, from after school on Friday until the commencement of school on Monday; and
(b)in the `off week’, for two nights to be agreed between the parties, or failing agreement, from after school on Tuesday until the commencement of school on Thursday.
Both parents are restrained from attending within 200 metres of the other parent’s home and workplace, except in the case of an emergency, or unless otherwise agreed between the parents.
Both parents are restrained from discussing these Court proceedings with the children, or doing so in their presence and they must use their best endeavours to ensure that no other person does so either.
Both parents are restrained from denigrating or otherwise speaking ill of the other parent to the children, or doing so in their presence and they must use their best endeavours to ensure that no one else does so either.
The matter be adjourned for further mention on 29^th July 2009 at 10:30am.

AND IT IS NOTED THAT that the parties have arranged for a Clinical Psychologist to prepare a Family Report in this matter.

IT IS NOTED that publication of this judgment under the pseudonym Wootton & Hillier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 2423 of 2007

MS WOOTTON

Applicant

And

MR HILLIER

Respondent

REASONS FOR JUDGMENT

Introduction

The following reasons were delivered as an oral judgment on 23 June 2009 following which the matter resolved or otherwise went into abeyance. A more recent skirmish has broken out and an Independent Children’s Lawyer has been appointed. The publication of these reasons now is intended to assist the parties and legal practitioners, at the very least to provide some historical context for the resumption of the contest. They have been slightly revised from the original transcript.
In making the following observations and subsequent orders, I should…

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 Wootton and Hillier

Details

AGLC: Wootton and Hillier [2009] FMCAfam 1513
Case: [2009] FMCAfam 1513
Decision Date: 23 June 2009

CaseChat Overview and Summary

The matter of Wootton and Hillier was heard in the Family Court of Australia, where the parents, Wootton and Hillier, were engaged in a dispute concerning the care and custody of their two children, born in 2003 and 2004. The primary issue was the setting aside of the existing parenting plan, which had been agreed upon on May 21, 2007, and the establishment of a new arrangement that would better serve the interests of the children. Both parents sought changes to the parenting arrangements, primarily concerning residence and time-sharing, as well as imposing restrictions to ensure the children's safety and wellbeing.

The court had to determine whether the existing parenting plan was in the best interests of the children and if alterations to the plan were necessary. This included evaluating the proposed changes to residence and time-sharing, as well as the restrictions sought by both parents. The court needed to balance the rights and responsibilities of both parents, taking into account the children's needs and the potential impact of the parents' ongoing conflict on the children.

The Family Court found that the existing parenting plan was no longer in the best interests of the children, given the changes in circumstances and the ongoing conflict between the parents. The court accepted that the proposed changes to residence and time-sharing, as well as the restrictions, were necessary to protect the children and promote their wellbeing. The court set aside the existing parenting plan and established a new arrangement that granted equal shared parental responsibility to both parents. The children were to reside with the mother, with the father having specified visitation rights. Both parents were restrained from attending within 200 metres of each other's home and workplace, except in the case of an emergency, or unless otherwise agreed. Additionally, both parents were restrained from discussing the court proceedings with the children or denigrating the other parent in their presence. The court also noted that a Clinical Psychologist had been engaged to prepare a Family Report in this matter.

The court further ordered that the matter be adjourned for further mention on 29th July 2009 at 10:30am, allowing the parties to update the court on any developments or changes in circumstances. The court's decision aimed to provide a stable and nurturing environment for the children while addressing the ongoing conflict between the parents.

Orders

Orders of the court

The Parenting Plan dated 21st May 2007 be set aside.

The parents will have equal shared parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2004.

The children will live with the Mother.

The children will spend time with their Father as follows:-

(a) Each alternate weekend, from after school on Friday until the commencement of school on Monday; and

(b) in the `off week’, for two nights to be agreed between the parties, or failing agreement, from after school on Tuesday until the commencement of school on Thursday.

Both parents are restrained from attending within 200 metres of the other parent’s home and workplace, except in the case of an emergency, or unless otherwise agreed between the parents.

Both parents are restrained from discussing these Court proceedings with the children, or doing so in their presence and they must use their best endeavours to ensure that no other person does so either.

Both parents are restrained from denigrating or otherwise speaking ill of the other parent to the children, or doing so in their presence and they must use their best endeavours to ensure that no one else does so either.

The matter be adjourned for further mention on 29th July 2009 at 10:30am.

AND IT IS NOTED THAT that the parties have arranged for a Clinical Psychologist to prepare a Family Report in this matter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.