Dyson and Hickey - [2014] FCCA 136

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYSON & HICKEY

[2014] FCCA 136

Catchwords:
FAMILY LAW – Parenting contest – acrimonious relationship between parents – Father has but refuses to acknowledge ‘anger management’ issues which he calls “passion” – Father provided no affidavit evidence at trial regarding parenting – despite long history of contest the Mother is still willing to promote the child’s relationship with the Father.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2) & (3), 61DA, 65DAA

Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

Applicant:

MS DYSON

First Respondent:

MR HICKEY

File Number:

CAC 456 of 2010

Judgment of:

Judge Neville

Hearing date:

7 August 2013

Date of Last Submission:

1 November 2013

Delivered at:

Canberra

Delivered on:

31 January 2014

REPRESENTATION

Counsel for the Applicant:

Ms J Godtschalk

Solicitors for the Applicant:

Legal Aid, ACT

Counsel for the Respondents:

Self-represented

Solicitors for the Respondents:

Not Applicable

Solicitor/Advocate for the Independent Children's Lawyer:

Mrs A Evans

Solicitors for the Independent Children's Lawyer:

Evans Family Lawyers

ORDERS

All previous Orders be discharged.
The Mother have sole parental responsibility for the child [X] (born [in] 2004) (“the child”) and shall keep the Father informed of any relevant, major long-term decision regarding the child.
The child live with the Mother.
The child spend time and communicate with the Father as agreed between the parties but failing agreement not less than:-
(a)For six months from the date of these Orders from the conclusion of school on Friday to 4:00pm on Sunday each alternate weekend;
(b)Thereafter:-
(i)from the conclusion of school Friday until the commencement of school the following Monday on each alternate weekend; and
(ii)For half of each ACT gazetted school holiday school period being the first half in all years ending in an even number and the second half in all years ending in an odd number or zero.
School holidays are to be the school holidays at the school which the child attends. They will be deemed to commence on the day after school breaks up and end on the day before the child returns to school. The party who is to spend time with the child is to have that time commence at 10:00am and to conclude at 3:00pm. One half of the school holiday period is to be calculated by dividing the total number of days the child does not attend school. If this is an uneven number, the Father is to have the additional day in the holidays falling or commencing on the even numbered years and not those in other years.
Changeovers that pursuant to Order 4a. occur with the Father collecting the child from school at the commencement of his time and returning the child to the entrance to the street of the Mother’s residence at the conclusion of his time.
Changeovers that pursuant to Order 4b. occur with the Father collecting the child from school at the commencement of his time and returning the child to school at…

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 Dyson and Hickey

Details

AGLC: Dyson and Hickey [2014] FCCA 136
Case: [2014] FCCA 136
Decision Date: 31 January 2014

CaseChat Overview and Summary

In the matter of *Dyson and Hickey*, heard by Judge Neville, the dispute concerned parenting arrangements for the child, X, born in 2004. The court was required to determine the terms of orders relating to the child's residence, time spent with each parent, and parental responsibility.

The court's reasoning focused on establishing a clear framework for the child's living arrangements and contact with both parents, while also addressing specific concerns regarding communication and the child's well-being. The orders reflect a determination to provide stability for the child, with the mother having sole parental responsibility and the child living with her. The father's time with the child was structured, with specific provisions for alternate weekends and school holidays, including detailed arrangements for changeovers.

Furthermore, the court imposed significant restrictions on the parties' communication, particularly concerning derogatory remarks about each other and the discussion of legal proceedings or sensitive matters with the child. The orders also mandated the exchange of information regarding the child's medical and educational matters, ensuring both parents remain informed. The court discharged all previous orders and made new orders reflecting these determinations.

Orders

Orders of the court

All previous Orders be discharged.

The Mother have sole parental responsibility for the child [X] (born [in] 2004) (“the child”) and shall keep the Father informed of any relevant, major long-term decision regarding the child.

The child live with the Mother.

The child spend time and communicate with the Father as agreed between the parties but failing agreement not less than:-

(a) For six months from the date of these Orders from the conclusion of school on Friday to 4:00pm on Sunday each alternate weekend;

(b) Thereafter:-

(i) from the conclusion of school Friday until the commencement of school the following Monday on each alternate weekend; and

(ii) For half of each ACT gazetted school holiday school period being the first half in all years ending in an even number and the second half in all years ending in an odd number or zero.

School holidays are to be the school holidays at the school which the child attends. They will be deemed to commence on the day after school breaks up and end on the day before the child returns to school. The party who is to spend time with the child is to have that time commence at 10:00am and to conclude at 3:00pm. One half of the school holiday period is to be calculated by dividing the total number of days the child does not attend school. If this is an uneven number, the Father is to have the additional day in the holidays falling or commencing on the even numbered years and not those in other years.

Changeovers that pursuant to Order 4a. occur with the Father collecting the child from school at the commencement of his time and returning the child to the entrance to the street of the Mother’s residence at the conclusion of his time.

Changeovers that pursuant to Order 4b. occur with the Father collecting the child from school at the commencement of his time and returning the child to school at the conclusion of his time.

Changeovers that occur during school holiday periods occur with the Father collecting the child from the entrance to the street of the Mother’s residence at the commencement of his time and returning the child to the entrance to the street of the Mother’s residence at the conclusion of his time.

Each of the parties is retrained from speaking about the other in a derogatory manner, either to the child or in the child’s presence or allowing any other person to do so. In particular, the Father is hereby injuncted and restrained from:-

(a) Discussing the content of these proceedings, including any allegations made in these proceedings with the child.

(b) Discussing the contents of any reports produced in these proceedings with the child.

(c) Discussing the contents of any proceedings undertaken against the Father pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Domestic Violence and Protection Orders 2008 (ACT) and the Family Law Act 1975 (Cth).

(d) Discussing with the child any routine or incident that may occur at the Mother’s residence.

10.

Each party shall advise the other within 24 hours of any medical or dental appointments at which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to the other party.

11.

Each party will notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other

12.

Within 7 days of the date of these Orders, the Mother authorise any primary school or secondary school of which the child attends to provide information to the Father in relation to the child’s academic and co-curricular activities, including copies of school reports.

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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