BH and HN and Anor - [2004] FMCAfam 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BH & HN & ANOR

[2004] FMCAfam 86

FAMILY LAW – Children – contact – interim hearing – application by grandmother.

Family Law Act 1975 (Cth), ss.60B; 65E

Cilento (1980) FLC 90-847
Cowling(1998) FLC 92-801
Rice v Miller (1993) FLC 92-415
Bright and Bright v Bright and Mackley (1995) FLC 92-570
Stevens and Lee (1991) FLC 92-201
Re: Hodak; Newman; Hodak (1993) FLC 92-421

Applicant:

H B

First Respondent:

N H

Second Respondent:

S G B

File No:

PAM 4999 of 2003

Delivered on:

17 February 2004

Delivered at:

Parramatta

Hearing date:

4 February 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Mr Marhinin

Solicitors for the Applicant:

Watts McCray

Solicitor for the First Respondent:

Ms Bulyk

Solicitors for the First Respondent:

Lili Bulyk

The Second Respondent appeared on his own behalf.

ORDERS

UNTIL FURTHER ORDER:

The Applicant Grandmother is to have contact with the child S B-H born 5 April 1999 as follows:
(a)From 9.00am to 4.00pm on the first Saturday of each month during school term time, commencing on 6 March 2004;
(b)From 9.00am to 6.00pm on the first Monday of each school holiday period;
(c)By telephone each Sunday between the hours of 5.00pm and 7.00pm, such that the Applicant Grandmother is to telephone the child S on the First Respondent’s mother’s mobile telephone number, and the mother must do all things necessary to make the child available to receive those telephone calls; and
(d)Otherwise as agreed between the grandmother and the mother.
For the purpose of facilitating the contact set out in Orders (1)(a), (b) and (d), the grandmother is to collect the child S from the mother’s residence at the commencement of each contact period and return her to the mother’s residence at the conclusion of each contact period.
The mother is restrained from changing the child’s place of residence from the State of New South Wales without the consent of the Second respondent father and the Applicant or Order of the Court.
The application is listed for final hearing on Friday 18 June 2004 at 10 am.
The applicant is to pay the setting down fee prescribed by the Federal Magistrates Regulations 2000 or apply for a waiver of that fee within three months of the date of this order.
Parties are to file and serve all further affidavits stating the facts upon which they seek to rely upon no later than 14 days prior to the hearing date.
Pursuant to section 62G of the Family Law Act the parties are to attended upon a family and child counsellor or welfare officer at the time, date and place set by the director of mediation for the purpose of preparation of a family report relating to the care, welfare and development of the child S.
I will grant liberty to apply on three (3) days notice.
Costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 4999 of 2003

H B

Applicant

And

N H

First Respondent

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.

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Details

Case: [2004] FMCAfam 86
Decision Date: 17 February 2004

CaseChat Overview and Summary

In the Family Court of Australia, the case of BH and HN and Anor involved an application by the applicant grandmother for an order regarding contact with her granddaughter, S B-H. The legal dispute centered on the grandmother's request for specified visitation rights and the mother's opposition to those terms. The court had to determine whether the proposed visitation schedule was in the best interests of the child, S B-H, and if the mother should be restrained from relocating without the consent of the father and the grandmother.

The court examined the evidence presented by both parties, including affidavits and expert opinions, to assess the impact of the proposed contact arrangements on the child's welfare. The grandmother argued that the visitation schedule would facilitate a strong relationship with her granddaughter, while the mother contended that the proposed terms were not in the child's best interests. The court also considered the mother's objection to the telephone contact provision, which required her to ensure the child was available for calls from the grandmother.

After considering the evidence and arguments, the court granted the grandmother specified visitation rights, as outlined in the orders, which included in-person visits and telephone contact during certain times. The court also restrained the mother from changing the child's residence without consent from the father and the grandmother, or a court order. The application was listed for a final hearing to further explore the matter, and the court reserved costs pending further developments. The court mandated that family and child counselling be undertaken and set a deadline for the filing of further affidavits.

Orders

Orders of the court

UNTIL FURTHER ORDER:

The Applicant Grandmother is to have contact with the child S B-H born 5 April 1999 as follows:

(a) From 9.00am to 4.00pm on the first Saturday of each month during school term time, commencing on 6 March 2004;

(b) From 9.00am to 6.00pm on the first Monday of each school holiday period;

(c) By telephone each Sunday between the hours of 5.00pm and 7.00pm, such that the Applicant Grandmother is to telephone the child S on the First Respondent’s mother’s mobile telephone number, and the mother must do all things necessary to make the child available to receive those telephone calls; and

(d) Otherwise as agreed between the grandmother and the mother.

For the purpose of facilitating the contact set out in Orders (1)(a), (b) and (d), the grandmother is to collect the child S from the mother’s residence at the commencement of each contact period and return her to the mother’s residence at the conclusion of each contact period.

The mother is restrained from changing the child’s place of residence from the State of New South Wales without the consent of the Second respondent father and the Applicant or Order of the Court.

The application is listed for final hearing on Friday 18 June 2004 at 10 am.

The applicant is to pay the setting down fee prescribed by the Federal Magistrates Regulations 2000 or apply for a waiver of that fee within three months of the date of this order.

Parties are to file and serve all further affidavits stating the facts upon which they seek to rely upon no later than 14 days prior to the hearing date.

Pursuant to section 62G of the Family Law Act the parties are to attended upon a family and child counsellor or welfare officer at the time, date and place set by the director of mediation for the purpose of preparation of a family report relating to the care, welfare and development of the child S.

I will grant liberty to apply on three (3) days notice.

Costs are reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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