Coleman and Hindle and Ors - [2010] FamCA 319

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ORS

[2010] FamCA 319

FAMILY LAW – CHILDREN – Best Interests – With whom the children live – dysfunctional relationship between maternal grandparents and parents – where the children are to spend no time with nor communicate with the maternal grandparents
FAMILY LAW – VEXATIOUS LITIGANTS – orders made under s 118(1)(c) FLA and s 114(3) FLA

Acts Interpretation Act 1954 (Qld) s 38

Child Protection Act 1999 (Qld) s 82(2)
Crimes Act 1900 (NSW) s 556A (now s 10)
Evidence Act 1995 (NSW) s 91

Family Law Act 1975 (Cth) ss 4; 60B, 60CC, 61C, 61DA, 65DAA, 69VA, 69ZT, 114, 118, Part VII

Supreme Court Act 1970 (NSW) s 84

Attorney General (NSW) vBhattacharya [2003] NSWSC 1150
Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481
Darwin and Darwin [2008] FamCA 588
Donnell & Dovey (2010) Fam CAFC 15
Lindberg & Scott (2009) FamCA 465
MRR v GR (2010) 263 ALR 368
Sinclair-Small & Sinclair [2008] FamCA 1056

APPLICANT:

Ms Hindle

1^ST RESPONDENT:

Mr Hindle

2^nd RESPONDENT:

Mrs Coleman

3^rd RESPONDENT:

Department of Communities (Child Safety Services)

INTERVENOR:

Mr Coleman

INDEPENDENT CHILDREN’S LAWYER:

Mr Carter

FILE NUMBER:

BRC

5431

2008

DATE DELIVERED:

22 April 2010

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane

JUDGMENT OF:

Watts J

HEARING DATE:

8 - 19 March 2010

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Balzamo

SOLICITORS FOR THE 1^st RESPONDENT:

Bridges Family Law Specialists

SECOND RESPONDENT

In person

COUNSEL FOR THE 3^rd RESPONDENT:

Mr Selfridge

SOLICITOR FOR THE 3^rd RESPONDENT:

Crown Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Lawyers

Orders

The children X born … October 1996 and Y born … October 2001 (“the children”) live with the mother.
The mother and father have equal shared parental responsibility for the long term care, welfare and development of the children.
The father spend time with the children at all reasonable times as may be agreed between the father and the mother.
The children spend no time with the maternal grandparents.
The maternal grandmother, Mrs Coleman, and the maternal grandfather, Mr Coleman, are restrained from attempting to contact the children by any means including by contacting or attempting to contact the children or either of them at their home, their school, their place of worship, or their sporting clubs or requesting or encouraging any other person to do so.
Neither the mother nor the father shall consume alcohol to the extent that they are no longer legally able to drive a motor vehicle nor shall either the mother or father use any illicit drugs when the children are spending time with them.
Neither the mother nor the father shall denigrate or allow any other person to denigrate the mother, father or maternal grandparents to or in the presence of or in the hearing of the children.
The mother and father inform each other of all medical…

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 Coleman and Hindle and Ors

Details

AGLC: Coleman and Hindle and Ors [2010] FamCA 319
Case: [2010] FamCA 319
Decision Date: 22 April 2010

CaseChat Overview and Summary

In the matter of *Coleman and Hindle and Ors*, Watts J of the Family Court of Australia made orders concerning the children X and Y. The dispute involved the parents of the children and the maternal grandparents, Mrs Coleman and Mr Coleman. The proceedings concerned parenting orders and the welfare and development of the children.

The court was required to determine a range of issues relating to the children's living arrangements, parental responsibility, and contact with both parents and the maternal grandparents. Key issues included the allocation of parental responsibility, the specific arrangements for the children spending time with their father, and the extent to which the maternal grandparents should have contact with the children. The court also considered orders relating to the parents' conduct, such as alcohol and drug use, and the denigration of other parties, as well as provisions for the exchange of information regarding the children's health, education, and welfare. Furthermore, the court addressed the applications made by the maternal grandparents and the need for potential future proceedings.

Watts J ordered that the children live with their mother and that both parents share equal parental responsibility for the children's long-term care, welfare, and development. The father was granted the right to spend time with the children at all reasonable times as agreed between the parents. Crucially, the court ordered that the children spend no time with their maternal grandparents and restrained the maternal grandparents from attempting to contact the children by any means. The court also made detailed orders regarding the parents' conduct, including prohibitions on excessive alcohol consumption or illicit drug use when the children are in their care, and the denigration of any party to or in the presence of the children. Provisions were made for the exchange of medical and educational information, and for parents to attend school and extra-curricular activities. The court also ordered the destruction of photographs taken by the maternal grandfather from the mother's computer. The applications brought by the maternal grandparents were dismissed, and they were restrained from instituting further proceedings under the *Family Law Act* without leave of the court.

Orders

Orders of the court

The children X born … October 1996 and Y born … October 2001 (“the children”) live with the mother.

The mother and father have equal shared parental responsibility for the long term care, welfare and development of the children.

The father spend time with the children at all reasonable times as may be agreed between the father and the mother.

The children spend no time with the maternal grandparents.

The maternal grandmother, Mrs Coleman, and the maternal grandfather, Mr Coleman, are restrained from attempting to contact the children by any means including by contacting or attempting to contact the children or either of them at their home, their school, their place of worship, or their sporting clubs or requesting or encouraging any other person to do so.

Neither the mother nor the father shall consume alcohol to the extent that they are no longer legally able to drive a motor vehicle nor shall either the mother or father use any illicit drugs when the children are spending time with them.

Neither the mother nor the father shall denigrate or allow any other person to denigrate the mother, father or maternal grandparents to or in the presence of or in the hearing of the children.

The mother and father inform each other of all medical practitioners involved in treating or caring for the children from time to time.

The mother and father be entitled to receive at their own request and expense any and all information relating to the health, education and welfare of the children including but not limited to any details of any illness suffered by the children and treatment required, any school reports, newsletter, notification of parent/teacher interviews, photograph order forms and details of any disciplinary matters. This order shall constitute an authority to each of the children’s medical practitioners, allied health professionals and schools to provide the information outlined in this order.

10.

The mother and father be at liberty to attend any school or extra-curricular activities to which parents are invited including but not limited to parent/teacher interviews, assemblies, concerts and sports days.

11.

In the event of the children becoming seriously ill or injured whilst in the care of the mother or the father, that the parent who has care of the children will notify the other parent as soon as possible and in any event within twenty four hours.

12.

In the event the children are prescribed medication or a particular form of treatment which is required to continue into a period when the other party or parties will be caring for the children, any medication or treatment is to be sent by the mother or father with the children together with a description of the condition for which it is required and the appropriate dosage or method of treatment.

13.

The mother and father inform each other and keep each other informed of any changes to their telephone numbers and addresses within twenty four hours of such change occurring.

14.

The maternal grandfather and the maternal grandmother do all things to ensure that copies of any photographs that were taken by the maternal grandfather from the mother’s computer (whether they be in hard copy or electronic form) be destroyed.

15.

The order, that the children’s interests in the proceedings are to be independently represented by the Independent Children’s Lawyer, be discharged.

16.

The applications brought by the maternal grandmother and maternal grandfather be dismissed.

17.

Pursuant to s 118(1)(c) Family Law Act, the maternal grandmother and maternal grandfather shall not institute any further proceedings under the Family Law Act for parenting orders or any other orders in relation to the children without leave of the Family Court of Australia.

18.

Pursuant to s 114(3) FLA, subject to any further order of the Court, the maternal grandmother and the maternal grandfather shall be restrained from serving upon any party in these proceedings any application for leave to institute any further proceedings under the Family Law Act for parenting orders and/or any other orders in relation to the children.

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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