Briggs and Hinkley - [2014] FCCA 2410

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRIGGS & HINKLEY

[2014] FCCA 2410

Catchwords:
FAMILY LAW – Parenting – conceded alcoholism of mother – unacceptable risk – serious psychological harm through neglect and exposure to family violence – ongoing supervision – relationships between siblings – state children’s court proceedings regarding child’s siblings – information sharing and provision of judgment to the Department of Human Services – children’s versus parent’s rights – expert evidence – self-represented litigants – Rice & Asplund – substantial role of independent children’s.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60B(2), 60B(4), 60CA, 60CC, 60CC(2), 61DA , 65DAA, 65DAA(5), 65DAC

Universal Declaration of Human Rights 1948
International Convention on the Rights of the Child
Federal Circuit Court Rules 2001

Jones v Dunkel (1959) 101 CLR 298
Makita & Sprowles (2001) 52 NSWLR 705
Re F Litigants in Person Guidelines (2001) FLC 93-072

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

M & M [1987] FLC 91-830
B & B (1986) FLC 91-758
Johnson & Page [2007] FamCA 1235
Deacon & Castle [2013] FCCA 691
H & W (1995) FLC 92-598
Re R Children’s Wishes [2000] FamCA 43

Articles:
Turney, D & Tanner, K, ‘Research and Practice Briefing: Understanding and Working with Neglect’, 2005 at 1-8.

Applicant:

MR BRIGGS

Respondent:

MS HINKLEY

File Number:

MLC 7646 of 2008

Judgment of:

Judge Harman

Hearing dates:

1, 2, 3, 4 and 25 September 2014

Date of Last Submission:

25 September 2014

Delivered at:

Albury

Delivered on:

31 October 2014

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondent:

Self-represented

Solicitors for the Independent Children’s Lawyer:

Legal Aid New South Wales, Sydney Central Family Law

ORDERS

All prior parenting orders with respect to the child X born (omitted) 2004 (hereinafter referred to as “X”) shall be and are hereby discharged.
X shall live with his father Mr Briggs.
Mr Briggs shall have sole parental responsibility for X.
Notwithstanding the above order X’s mother Ms Hinkley shall be and is hereby authorised to:
(a)Obtain from any school that X may attend from time to time all and any information about his progress and welfare as she may desire including copies of school reports, awards and information regarding X’s achievement and activities as well as school photographs at her expense;
(b)Obtain from any health professional or institution dealing with X all and any information that she may desire regarding X’s medical treatment, information that she may reasonably require to be able to meet X’s needs whilst X is in her care together with any medical reports, treatment plans or similar information.
Mr Briggs shall do all things necessary and provide all consents and authorities and instructions necessary to enable Ms Hinkley to obtain information in accordance with the above order.
X shall spend time with his mother Ms Hinkley at the following times and subject to the following conditions:
(a)X shall spend time with Ms Hinkley from 11am until 5pm each alternate Sunday commencing the Sunday immediately after…

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 Briggs and Hinkley

Details

AGLC: Briggs and Hinkley [2014] FCCA 2410
Case: [2014] FCCA 2410
Decision Date: 31 October 2014

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Harman in the Federal Circuit Court of Australia. The dispute involved Mr Briggs and Ms Hinkley, the parents of a child named X, regarding the future living arrangements and parental responsibilities for X.

The court was required to determine the primary residence of X, the allocation of parental responsibility, and the nature and extent of contact between X and his mother, Ms Hinkley. Additionally, the court had to consider the conditions and limitations to be placed on the communication and information-sharing between the parents and X, particularly in light of the proposed arrangements.

Judge Harman ordered that all prior parenting orders concerning X be discharged. X was to live with his father, Mr Briggs, who was granted sole parental responsibility. Notwithstanding this, Ms Hinkley was authorised to obtain information regarding X's progress and welfare from his school and any healthcare professionals or institutions. Mr Briggs was ordered to facilitate this information gathering. X was to spend time with Ms Hinkley on alternate Sundays between 11 am and 5 pm, with supervision by a Ms S. Mr Briggs was also to facilitate reasonable communication between X and Ms Hinkley via electronic means, and Ms Hinkley was entitled to specific telephone contact times with X. Crucially, Ms Hinkley was prohibited from discussing Mr Briggs, his current household, or the proceedings with X, and was not to encourage contact beyond the ordered arrangements. The court also requested that a copy of the reasons and orders be provided to the Department of Human Services Victoria.

Orders

Orders of the court

All prior parenting orders with respect to the child X born (omitted) 2004 (hereinafter referred to as “X”) shall be and are hereby discharged.

X shall live with his father Mr Briggs.

Mr Briggs shall have sole parental responsibility for X.

Notwithstanding the above order X’s mother Ms Hinkley shall be and is hereby authorised to:

(a) Obtain from any school that X may attend from time to time all and any information about his progress and welfare as she may desire including copies of school reports, awards and information regarding X’s achievement and activities as well as school photographs at her expense;

(b) Obtain from any health professional or institution dealing with X all and any information that she may desire regarding X’s medical treatment, information that she may reasonably require to be able to meet X’s needs whilst X is in her care together with any medical reports, treatment plans or similar information.

Mr Briggs shall do all things necessary and provide all consents and authorities and instructions necessary to enable Ms Hinkley to obtain information in accordance with the above order.

X shall spend time with his mother Ms Hinkley at the following times and subject to the following conditions:

(a) X shall spend time with Ms Hinkley from 11am until 5pm each alternate Sunday commencing the Sunday immediately after the making of these orders;

(b) X shall be collected from the home of Mr Briggs and returned to the home of Mr Briggs by Ms S, who shall otherwise be present at all times for the period from 11am until 5pm and shall supervise all time that shall occur between X and Ms Hinkley and in accordance with the signed undertaking that she has provided to the Court and comprising exhibit N.

Mr Briggs shall facilitate any reasonable request made by X to communicate with his mother or his brothers, X and B by telephone, Skype, Facetime or similar electronic means.

Ms Hinkley shall be entitled to telephone and speak with X between 6–6:30pm each Wednesday and Sunday and with respect to same:

(a) Ms Hinkley shall telephone X on such number as is advised to her by Mr Briggs;

(b) Mr Briggs shall allow X to speak with Ms Hinkley with privacy and without interruption or distraction; and

(c) Ms Hinkley shall refrain from discussing with X (during telephone communication or face-to-face time) Mr Briggs, Ms A, anything occurring within their household or anything relating to or arising from these proceedings and shall, further, not seek to encourage X to engage with her or spend time with her save in accordance with these orders.

Request that the Court provide a copy of these Reasons and the orders made today to the Department of Human Services Victoria.

10.

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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