Donovan and Hargrave - [2011] FMCAfam 1494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONOVAN & HARGRAVE

[2011] FMCAfam 1494

FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – two boys aged 14 years and 11 years living with father – whether children alienated from the mother – children’s wishes – where children express a wish to remain living with their father.

Family Law Act 1975, ss.60CA, 60CC, 60CD, 61DA, 61DB, 62G, 65DAA, 68L

Donovan & Hargrave [2011] FMCAfam 1468
Jones v Dunkel (1959) 101 CLR 298

Applicant:

MS DONOVAN

Respondent:

MR HARGRAVE

File Number:

PAC 1122 of 2009

Judgment of:

Scarlett FM

Hearing dates:

13 and 14 December 2011

Date of Last Submission:

14 December 2011

Delivered at:

Sydney

Delivered on:

16 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

Respondent:

In person

Solicitor for the Independent Children’s Lawyer:

Ms Karagiannis

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

The children [X] born [in] 1997 and [Y] born [in] 2000 are to spend time with the Applicant Mother as follows:
(a)From the conclusion of school on Friday 16 December 2011 until 6:00pm on Friday 23 December 2011;
(b)From 2:00pm to 6:00pm on Christmas Day 2011;
(c)From 11:00am to 6:00pm each alternate Sunday commencing on Sunday 8 January 2012;
(d)From 9:00am on Monday 16 January until 6:00pm on Sunday 22 January 2012; and
(e)From the conclusion of school each Monday until the commencement of school on Wednesday commencing on Monday 6 February 2012.
For the purpose of Order 1(a) the Mother is to collect the children from their school at the commencement of the time the children spend with her and return the children to the Father’s residence at the conclusion of the time.
For the purposes of Orders (1)(b), (1)(c) and (1)(d), the Mother is to collect the children from the Father’s residence at the commencement of the time the children spend with her and the Father is to collect the children from the Mother’s residence at the conclusion of the time.
For the purposes of Order (1)(e) the Mother is to collect the children from school at the commencement of the time and return the children to school at the conclusion of the time.
In the event that the Mother is not able to collect the children at the time specified in these Orders she must inform the Father by telephone at least one (1) hour beforehand.
The Father must ensure that whenever the children are to spend time with the Mother in accordance with these orders they are to attend school and take with them any clothing and any other possessions that they may require during the time they will be spending with the Mother.
If the children are not at school on a day when they are to be collected by the mother in accordance with these Orders, the Father must advise the Mother by 10:00am of the time and place when they…

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 Donovan and Hargrave

Details

AGLC: Donovan and Hargrave [2011] FMCAfam 1494
Case: [2011] FMCAfam 1494
Decision Date: 16 December 2011

CaseChat Overview and Summary

This case involved a dispute between Donovan and Hargrave, parents of two children, [X] born in 1997 and [Y] born in 2000. The matter was heard in the Family Court of Australia, where the primary concern was the allocation of parenting time between the Applicant Mother and the Respondent Father. The dispute arose due to the children's reluctance to spend time with the mother, influenced by their father, leading to an application for orders regarding their parenting time and interaction with both parents.

The court had to determine the specific periods during which the children would reside with their mother, the logistics of transitioning between parents, and measures to ensure the children's welfare and adherence to the court's orders. Additionally, the court had to address concerns about the father's influence on the children and the need for counselling and support services for the mother to better meet the children's needs.

In its reasoning, the court emphasised the importance of maintaining a consistent and supportive environment for the children, ensuring their education was not disrupted, and preventing either parent from influencing the children's views on living arrangements. The court outlined detailed schedules for the children's time with their mother, specified the logistics of transitions between parents, and mandated that the father ensure the children's attendance at school and possession of necessary items. The court also imposed restrictions on both parents to prevent discussions that might sway the children's preferences. Furthermore, the court required the mother to attend parenting and counselling workshops to better support the children during their time with her.

The final orders included specific visitation schedules for the children, requirements for both parents to facilitate transitions and ensure the children's educational needs, and mandates for counselling and support services for the mother. Both parents were also restrained from discussing certain topics with the children. The Independent Children's Lawyer was granted powers to re-list the matter in case of non-compliance, provide relevant services with a copy of the Family Report, and explain the orders to the children. The application was adjourned for further mention.

Orders

Orders of the court

UNTIL FURTHER ORDER

The children [X] born [in] 1997 and [Y] born [in] 2000 are to spend time with the Applicant Mother as follows:

(a) From the conclusion of school on Friday 16 December 2011 until 6:00pm on Friday 23 December 2011;

(b) From 2:00pm to 6:00pm on Christmas Day 2011;

(d) From 9:00am on Monday 16 January until 6:00pm on Sunday 22 January 2012; and

(e) From the conclusion of school each Monday until the commencement of school on Wednesday commencing on Monday 6 February 2012.

For the purpose of Order 1(a) the Mother is to collect the children from their school at the commencement of the time the children spend with her and return the children to the Father’s residence at the conclusion of the time.

For the purposes of Orders (1)(b), (1)(c) and (1)(d), the Mother is to collect the children from the Father’s residence at the commencement of the time the children spend with her and the Father is to collect the children from the Mother’s residence at the conclusion of the time.

For the purposes of Order (1)(e) the Mother is to collect the children from school at the commencement of the time and return the children to school at the conclusion of the time.

In the event that the Mother is not able to collect the children at the time specified in these Orders she must inform the Father by telephone at least one (1) hour beforehand.

The Father must ensure that whenever the children are to spend time with the Mother in accordance with these orders they are to attend school and take with them any clothing and any other possessions that they may require during the time they will be spending with the Mother.

If the children are not at school on a day when they are to be collected by the mother in accordance with these Orders, the Father must advise the Mother by 10:00am of the time and place when they are available for collection.

The Father is restrained from attending at the children’s schools at any time after 2:30pm on any day when the children are due to be collected by the Mother in accordance with these Orders.

The Father must encourage the children [X] and [Y] to spend time with the Mother in accordance with these Orders.

10.

Within seven (7) days of these Orders, the Mother must contact ‘Creating Links’ at [B] and arrange to attend and complete the first available ‘Parenting Adolescents for Vietnamese Parents’ workshop and attend and complete any further programs offered by that Centre to assist her to meet the children’s needs whilst they are spending time with her.

11.

Within seven (7) days of these Orders the Mother must contact the [omitted] Women’s Health Centre and arrange to attend upon a female Vietnamese counsellor and continue to attend on that counsellor and continue to attend on her for the duration and at the frequency recommended by the counsellor to assist her to meet the children’s needs when they are spending time with her.

12.

The Mother is hereby restrained from discussing any of the following issues with the children:

(a) The children’s views as to where they wish to live or why they do not wish to live with her;

(b) Any allegation made in these proceedings; or

13.

The Father is hereby restrained from engaging the children in any discussion relating to the following issues:

(a) Whether they wish to spend time with the mother; or

(b) Any allegation made in these proceedings or any other matter relating to these proceedings.

14.

The Independent Children’s Lawyer is granted liberty to re-list this matter in the event of non-compliance on seven (7) days’ notice.

15.

The Independent Children’s Lawyer is granted liberty to provide ‘Creating Links’ at [B] and any other service that the Mother may approach for counselling or other assistance with a copy of the Family Report.

16.

The Independent Children’s Lawyer is granted liberty to provide the children’s schools with a copy of these Orders.

17.

The Independent Children’s Lawyer is to explain these Orders to the children within three (3) days of the date of these Orders and the Father shall facilitate the children’s attendance upon the Independent Children’s Lawyer for this purpose.

18.

The Application is adjourned to Monday 26 March 2012 for further mention.

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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