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 |
| Jones v Dunkel (1959) 101 CLR 298 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 M & M [1987] FLC 91-830 Articles: |
| 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…
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- Briggs and Hinkley [2014] FCCA 2410
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- [2014] FCCA 2410
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CaseChat Overview and Summary
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
1.
All prior parenting orders with respect to the child X born (omitted) 2004 (hereinafter referred to as “X”) shall be and are hereby discharged.
2.
X shall live with his father Mr Briggs.
3.
Mr Briggs shall have sole parental responsibility for X.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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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