Father appeals decision granting Mother Sole Parental Responsibility and reduction in time with.
Edhouse & Edhouse [2022] FedCFamC1A 84 (2 June 2022)
The primary judge made an order for the mother to have sole parental responsibility and reduced time with from week about to requiring the mother to take "reasonable steps" that the father see the child on week-ends. The father appealed such order asserting that the primary judge erred in making an order for sole parental responsibility when neither party pressed for an order of parental responsibility. The Court, in adjudicating this dispute, assessed if there was procedural fairness and the manner by which the primary judge addressed the grounds for appeal.
Facts:
The parties commenced cohabitation in July 2014 and married in August 2015. They separated in 2021. Their child is now three years old.
Following separation, the parties agreed upon an arrangement whereby the child spent three nights of each week with the appellant.
In May 2021, the respondent unilaterally ceased facilitating time between the child and the appellant.
On 4 June 2021, the appellant filed an Initiating Application in which he sought both final and interim parenting orders.
On 25 August 2021 a senior judicial registrar entered orders which included for the child to live with the respondent and to spend time with the appellant on an alternative week basis, with week one being from 10.00 am or the conclusion of pre-school on Friday until 5.00 pm on Sunday and, in week two, from 10.00 am or the conclusion of pre-school on Wednesday until 6.00 pm Thursday.
The orders provided for that time to progressively increase such that, as and from 1 January 2022, during the second week, the child’s time would be extended from Thursday evening until 10.00 am on Friday. No order was made in respect to parental responsibility. The appellant sought that the child live with him, spend time with the respondent, and that the child attend day care at proposed schedules.
On 22 September 2021, the primary judge made orders for the respondent to have sole parental responsibility over the child who shall live with the respondent.
Furthermore, the parties shall take all reasonable steps to ensure that the child spends time with the [appellant] each week from 5:00 pm Saturday until 7:00 pm Monday.
Issues:
I. Whether or not the primary judge erred in making an order for sole parental responsibility when neither party pressed for an order of parental responsibility.
II. Whether or not the primary judge failed to afford procedural fairness.
III. Whether or not the primary judge erred when determining the time spent between the appellant and the child.
IV. Whether or not the primary judge erred in determining the respective day care enrolments for the child.
Applicable law:
(a) Acts upon a wrong principle; or(b) Allows extraneous or irrelevant matters to guide or affect the decision; or
(c) Mistakes the facts; or
(d) Fails to take into account some material consideration; or
(e) Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.
Analysis:
As at the time of the interim hearing before the primary judge, both parents had filed applications for final parenting relief seeking that an order for sole parental responsibility be made in his or her favour. This is a powerful statement to the Court that neither party has confidence that equal shared parental responsibility, joint and several parental responsibility or a partial sharing of parental responsibility can and will function in the best interests of their child.
Upon the basis of the exchange between the primary judge and senior counsel for the appellant, there is, with respect, no reasonable basis for the appellant to contend that the primary judge did not communicate that he intended to consider the issue of parental responsibility. The exchange between the primary judge and senior counsel for the appellant occurred in the context where the primary judge was, by legislative direction, obliged to consider the issue of parental responsibility.
It was unnecessary for the primary judge to explain why he did not adopt alternative proposals from a series of potentially cascading options from parental responsibility down to responsibility only in respect to the issue of day care/preschool.
The primary judge clearly explained, by reference to the relevant considerations set out in s 60CC of the Act, why he made the orders that he did in respect to both where the child would live and the amount of time that she would spend with the appellant.
After identifying the competing proposals of the parties, the primary judge spent quite some time in discussion with counsel for each of the parties with a view to identifying the issues in dispute in the proceedings. After identifying those issues, his Honour adjourned the proceedings until later in the day, at which time the parties were invited to address the primary judge in respect to those issues.
Conclusion:
The Amended Notice of Appeal filed 17 February 2022 is dismissed. The appellant is to pay the costs of the respondent in the sum of $14,665.74 within 14 days.
