Donovan and Hargrave - [2010] FMCAfam 1458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONOVAN & HARGRAVE

[2010] FMCAfam 1458

FAMILY LAW – Children – Interim Parenting Orders – best interests of the children – two boys aged 13 and 10 years living with father – whether children alienated from the mother – equal shared parental responsibility – appointment of Independent Children’s Lawyer – insufficient evidence to place children’s names on the Airport Watch List.

Family Law Act 1975, ss.11C, 11F, 60CA, 60CC, 61DA, 61DB, 65DAA, 68L, 68LA

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant:

MS DONOVAN

Respondent:

MR HARGRAVE

File Number:

PAC 1122 of 2009

Judgment of:

Scarlett FM

Hearing date:

17 December 2010

Date of Last Submission:

17 December 2010

Delivered at:

Sydney

Delivered on:

21 December 2010

REPRESENTATION

Counsel for the Applicant:

Ms Petrie

Solicitors for the Applicant:

Gibson Howlin Lawyers

The Respondent:

In person

ORDERS

All earlier parenting orders are discharged.
The children of the marriage [X] born [in] 1997 and [Y] born [in] 2000 are to live with the father.
The parties are to have equal shared parental responsibility for the children [X] and [Y].
The mother is to have sole parental responsibility for the day to day care of the [X] and [Y] during the time that they spend with her.
The father is to have sole parental responsibility for the day to day care of the children during that they spend with him.
The interests of the children [X] and [Y] are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange such representation.
The parties are to forward copies of all applications, responses, affidavits and other relevant documents to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed seven (7) days.
UNTIL FURTHER ORDER the children are to spend time with the mother as follows:
(a)From directly after school to 7.00 pm each Monday during school term time;
(b)From 9.00 am to 5.00 pm each Sunday during school term time;
(c)From 9.00 am to 7.00 pm each Monday during the school holidays commencing on 27 December 2010;
(d)From 9.00 am to 7.00 pm each Sunday during the school holidays commencing on 2 January 2011;
(e)From 2.00 pm until 7.00 pm on Christmas Day;
(f)From 9.00 am until 7.00 pm on Boxing Day;
(g)For a period of not less than three (3) hours on each of the children’s birthdays;
(h)From 9.00 am to 5.00 pm on Mother’s Day; and
(i)At such other times as the parties may agree.
The father is permitted to take the children out of the Sydney Metropolitan Area for the purposes of a holiday for period of up to 14 days after 3 January 2011 PROVIDED THAT he provides to the mother an itinerary setting out the times and dates of travel and addresses at which the children will be staying.
For the purposes of order…

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 [2010] FMCAfam 1458
Case: [2010] FMCAfam 1458
Decision Date

CaseChat Overview and Summary

The case of Donovan and Hargrave involved a dispute over interim parenting orders between the parents of two boys aged 13 and 10 years. The mother sought more time with her children, while the father argued that they were scared of her. The Federal Magistrates Court of Australia considered the evidence and submissions from both parties before reaching a decision. The central legal issues were whether the children should have equal shared parental responsibility and whether they should spend more time with their mother. The court examined the primary considerations under the Family Law Act 1975, such as the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from harm. The court found that it was in the children's best interests to have equal shared parental responsibility and to spend more time with their mother than the current arrangement allowed. The court ordered that the children live with their father but spend additional time with their mother on specified days and during certain periods, including weekends and school holidays. The court also ordered the appointment of an Independent Children's Lawyer to represent the children's interests and rejected the mother's request to place the children's names on the Airport Watch List without sufficient evidence. The court's decision aimed to balance the children's need for a relationship with both parents while ensuring their safety and well-being.

Orders