Gyles & Humes - [2022] FedCFamC2F 1778

Federal Circuit and Family Court of Australia
(DIVISION 2)
Gyles & Humes [2022] FedCFamC2F 1778

File number(s): HBC 658 of 2020

Judgment of: JUDGE TAGLIERI

Date of judgment: 22 December 2022

Catchwords:
FAMILY LAW – final parenting – relocation – where mother seeks to relocate primary residence of the child from Tasmania to South Australia – where child’s relationship with father is poor – where allegation of family violence to the child by the father – finding that the mother and the step-father have contributed to the poor relationship between the father and the child – relocation allowed – orders that the child live with the mother and spend time with the father – alternative spend time with orders if the child resides in the Greater Hobart area – s 68B injunctive orders

FAMILY LAW – contravention – where mother admits to contravening parenting orders without reasonable excuse – where mother has previously breached parenting orders for which suspended sentence handed down – suspended sentence – bond entered by mother to be of good behaviour

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60B(1), 60CC(2), 60CC(2A), 60CC(2)(a), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(ca), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 61B, 61DA, 65DAA, 65DAA(3), 65DAA(5), 65DAC, 121

Cases cited:
A & A: Relocation Approach (2000) FLC 93-035

Adamson & Adamson (2014) FLC 93-622

Aldridge & Keaton (2009) FLC 93-421

B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755

Dieter & Dieter [2011] FamCAFC 82

Gillespie v Bahrin; The Herald and Weekly Times Ltd (intervener) (1993) FLC 92-388

Goldrick v Goldrick [2007] FamCA 1260

Goode & Goode [2006] FamCA1346

Hedlund & Hedlund [2021] FedCFamC1A 84

Hepburn & Noble [2010] FamCAFC 111

In the Marriage of Smythe (1983) 48 ALR 677

Marvel & Marvel [2010] FamCAFC 101

MRR & GR [2010] HCA 4

Neubert & Neubert and Ors [2017] FamCA 903

Olssen & Wise(No.2) [2016] FCCA 884

Slater & Light [2011] FamCAFC 1

Star & Duggan [2009] FamCAFC 115

Taylor & Barker [2007] FamCA 1246

Division: Division 2 Family Law

Number of paragraphs: 173

Date of hearing: 28 – 30 November 2022

Place: Hobart

Counsel for the Applicant: Mr Trezise

Solicitor for the Applicant: Murdoch Clarke

Solicitor for the Respondent: Mr McKenna, Ogilvie Jennings

Counsel for the Independent Children’s Lawyer: Ms Ryan

Solicitor for the Independent Children’s Lawyer: Jacob’s Family Law
ORDERS

HBC 658 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GYLES

Applicant

AND:
MR HUMES

Respondent

AND
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

22 December 2022

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The appointment of the Independent Children’s Lawyer is extended to 28 February 2023, subject to legal aid funding.
3.The Independent Children’s Lawyer serve on the step-father Mr B:
(a)A copy of these Orders; and
(b)A copy of paragraphs 161, 162, and 173 of the Reasons for Judgment delivered 22 December 2022.

Parental Responsibility
4.By consent, the Applicant Mother MS GYLES (“the Mother”) have sole parental responsibility…

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 Gyles & Humes

Details

AGLC: Gyles & Humes [2022] FedCFamC2F 1778
Case: [2022] FedCFamC2F 1778
Decision Date

CaseChat Overview and Summary

The case of Gyles & Humes involves parenting proceedings between Ms Gyles (the mother) and Mr Humes (the father) concerning their 13-year-old child, X. The primary issues before the court were whether the mother should be permitted to relocate the child's principal residence from Tasmania to South Australia, and if so, what arrangements should be made for the child to spend time with the father. The court also had to consider protective orders for the child's personal protection and orders in relation to the mother's admitted contravention of court orders.

The court found that the mother and the step-father had contributed to the poor relationship between the child and the father, and that the father had also contributed by his own manner and style of communication and interaction. The court concluded that permitting the mother to relocate the child's residence to South Australia would not be in the child's best interests, but that the child should spend substantial time with the father during available school holidays. Injunctive orders were made for the personal protection of the child, and the mother was subject to a suspended sentence of four weeks imprisonment for her admitted contravention of court orders.

This decision highlights the importance of considering the best interests of the child in all parenting decisions, including relocation. The court emphasised the need to protect the child from emotional harm and to promote a meaningful relationship between the child and both parents. The decision also underscores the importance of enforcing court orders and the need for appropriate sanctions when parents disregard the court's authority.

Orders