Wright & Dannell - [2022] FedCFamC2F 1743

Federal Circuit and Family Court of Australia
(DIVISION 2)
Wright & Dannell [2022] FedCFamC2F 1743

File number(s): ADC 2222 of 2022

Judgment of: JUDGE DICKSON

Date of judgment: 6 December 2022

Catchwords: FAMILY LAW – CHILDREN – parenting orders – interim proceedings – two children aged seven and six years - consideration of the best interests of the children – equal shared parental responsibility – proposed relocation by the mother from Town B to Adelaide – where the mother alleges her wellbeing and parenting abilities will be adversely affect if she remains – weight to be applied to recommendations in Family Assessment Report pending Trial – interim orders for time spending and special occasion time – interim orders for the children to remain in Town B pending Trial

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
AMS & AIF (1999) FLC 92-852

Andrew & Delaine [2009] FamCAFC 182

B & B (1997) FLC 92-755

Beaton & Beaton [2020] FamCAFC 297

Campbell & Spalding [1998] FamCA 66

D & P [2006] FamCA 170

Friscioni & Friscioni [2010] FamCAFC 108

Goode v Goode (2006) FLC 93-286

Hall & Hall (1979) FLC 90-713

Hannigan & Sorraw [2010] FamCAFC 257

Harris & Harris (1977) FLC 90-276

Morgan & Miles [2007] FamCA 1230

U v U [2002] HCA 36

Wood & Wood (1976) FLC 90-098

Division: Division 2 Family Law

Number of paragraphs: 97

Date of hearing: 5 December 2022

Place: Adelaide

Counsel for the Applicant: Ms Ross

Solicitor for the Applicant: Bartel & Hall

Counsel for the Respondent: Mr Robinson

Solicitor for the Respondent: Alex Mandry Legal Group

Solicitor for the Independent Children's Lawyer: Ms Goldsworthy
ORDERS

ADC 2222 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WRIGHT

Applicant

AND:
MS DANNELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE DICKSON

DATE OF ORDER:

6 DECEMBER 2022

UPON APPLICATION MADE TO THE COURT by Ms Ross of Counsel for the Applicant, Mr Robinson of Counsel for the Respondent and Ms Goldsworthy as the Independent Children’s Lawyer.
UPON NOTING THAT the proceedings were conducted in person.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.All previous interim parenting orders be discharged.
2.The parties have equal shared parental responsibility for the children X born in 2015 and Y born in 2016 (‘the children’).
3.The said children do live with the mother save as provided otherwise herein.
4.The said children spend time with father as follows:
(a)During the Christmas school holidays 2022/23 as follows:
(i)From 4:00pm (or the conclusion of school) Friday 16 December 2022 to 9:00am Wednesday 21 December 2022;
(ii)From 3:00pm Sunday 25 December 2022 to 3:00pm Monday 26 December 2022;
(iii)From 4:00pm Thursday to 9:00am Wednesday and each alternate week thereafter following the cycle of the father’s roster;

(b)As and from Term 1 2023 and following the cycle of the father’s roster referred to in paragraph 4(a)(iii) herein from the conclusion of school (or 4:00pm if a non-school day) Thursday to the commencement of…

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 Wright & Dannell

Details

AGLC: Wright & Dannell [2022] FedCFamC2F 1743
Case: [2022] FedCFamC2F 1743
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by the father, Mr Wright, for interim parenting orders in relation to the two children of the parties, X (aged 7) and Y (aged 6). The mother, Ms Dannell, sought orders for the children to relocate to Adelaide with her and for the children to spend significant time with the father. The Court was required to decide the best interests of the children and whether or not the children should be permitted to relocate to Adelaide. The Court was also required to decide the time spending arrangements pending the final hearing. The Court declined to permit the children to relocate to Adelaide on an interim basis. The Court held that the mother's application for relocation was to be determined at Trial. The Court considered the evidence before it and the weight to be given to the Family Assessment Report. The Court concluded that the children should remain living in Town B pending Trial and that the children should spend time with the father during the Christmas school holidays and for four nights per fortnight during school terms. The Court ordered that the children should spend Christmas Day 2022 with each parent in Town B.

Orders