Hadfield and Harris - [2012] FMCAfam 2

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HADFIELD & HARRIS

[2012] FMCAfam 2

FAMILY LAW – Parenting – two children aged nine and seven years – children previously living with each of their parents pursuant to a 9:5 arrangement in favour of the wife – husband alleges the children are at physical risk when in the care of the wife – husband’s allegations found to be without foundation – wife alleges children are at emotional and psychological risk when in the care of the husband – husband’s behaviour and actions found to give rise to emotional and psychological risk to the children and to severely negatively impact upon the wife’s capacity to parent – orders made for the wife to have sole parental responsibility for the children, for the children to live with her and spend no time with the husband.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Commonwealth Evidence Act 1995, s.140

Rice and Asplund (1978) 6 Fam LR 570
Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92

Applicant:

MS HADFIELD

Respondent:

MR HARRIS

File Number:

MLC 8871 of 2008

Judgment of:

Bender FM

Hearing dates:

16, 17 & 18 November 2011 and
5 & 6 December 2011

Date of Last Submission:

6 December 2011

Delivered at:

Melbourne

Delivered on:

24 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Arnold

Solicitors for the Applicant:

Rochelle Belcher

Counsel for the Respondent:

In person

Solicitors for the Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms Brennan

Solicitors for the Independent Children’s Lawyer:

Mr W

ORDERS

All previous parenting orders be discharged.
The wife have sole parental responsibility for the children X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”).
X and Y live with the wife.
X and Y spend no time with the husband and communication between X and Y and the husband be solely as provided for in these orders.
The husband be at liberty to send X and Y letters, cards and gifts PROVIDED THAT such items are sent by ordinary pre-paid post addressed to either of X and/or Y to their residential address.
The wife shall be at liberty to read correspondence sent by the husband to X and Y pursuant to order 5 herein and she shall be at liberty to not provide the correspondence to X and/or Y if it is critical of her, her family or the environment in which X and Y are being brought up, or, in her absolute discretion she considers it to be otherwise inappropriate.
The husband be and is by himself restrained from:
(a)approaching within 100 metres of the wife, X and Y;
(b)attending at or within 500 metres of X and Y’s school/s;
(c)attending at or within 500 metres of the residence of the wife and X and Y;
(d)attending at or within 500 metres of the wife’s place of work; and
(e)emailing or otherwise communicating with the wife save as provided for in these orders.
The wife…

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 Hadfield and Harris

Details

AGLC: Hadfield and Harris [2012] FMCAfam 2
Case: [2012] FMCAfam 2
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the Family Court of Australia, Hadfield and Harris was a case concerning the parenting arrangements of two children, X and Y. The wife, in this instance, sought sole parental responsibility over the children, which included sole decision-making authority regarding their welfare and day-to-day care. The husband contested these claims, advocating for shared parental responsibility and regular visitation rights. The court had to determine whether the wife's application for sole parental responsibility should be granted, and if so, under what conditions.

The central legal issues addressed by the court were the best interests of the children and the application of the relevant statutory criteria under the Family Law Act 1975. The court examined the evidence provided by both parents regarding their capacity to provide for the children's physical, emotional, and educational needs. It also considered the impact of the proposed orders on the children's relationship with each parent, particularly the father's restricted access to the children as a result of his past violent and abusive conduct. The court balanced these considerations against the statutory presumption of equal shared parental responsibility.

The court concluded that sole parental responsibility should vest in the wife due to the husband's history of violence and abuse towards the wife and the children. The court found that the husband's past conduct created a significant risk to the children's safety and wellbeing. The detailed evidence presented by the wife and the children corroborated the husband's unsuitability to share parental responsibility. The court also considered the children's need for stability and protection from further harm. Consequently, the court discharged all previous parenting orders and granted sole parental responsibility to the wife, with strict limitations on the husband's contact with the children to ensure their safety.

The court ordered that the husband must not approach the wife or the children within 100 metres, attend their school or residence within 500 metres, or communicate with the wife except as permitted by the orders. The wife was authorised to manage the children's correspondence from the husband and decide whether to share it with the children. The wife was also granted the authority to make significant decisions regarding the children's welfare, education, and international travel without the husband's consent. Furthermore, the wife was mandated to facilitate the children's communication with the husband through school reports and medical updates. The Independent Children's Lawyer was required to explain the court's orders to the children within 14 days of the decision.

Orders

Orders of the court

All previous parenting orders be discharged.

The wife have sole parental responsibility for the children X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”).

X and Y live with the wife.

X and Y spend no time with the husband and communication between X and Y and the husband be solely as provided for in these orders.

The husband be at liberty to send X and Y letters, cards and gifts PROVIDED THAT such items are sent by ordinary pre-paid post addressed to either of X and/or Y to their residential address.

The wife shall be at liberty to read correspondence sent by the husband to X and Y pursuant to order 5 herein and she shall be at liberty to not provide the correspondence to X and/or Y if it is critical of her, her family or the environment in which X and Y are being brought up, or, in her absolute discretion she considers it to be otherwise inappropriate.

The husband be and is by himself restrained from:

(a) approaching within 100 metres of the wife, X and Y;

(b) attending at or within 500 metres of X and Y’s school/s;

(d) attending at or within 500 metres of the wife’s place of work; and

(e) emailing or otherwise communicating with the wife save as provided for in these orders.

The wife authorise any school/s attended by X and Y to forward to the husband, at the husband’s expense, copies of all school reports, school photograph order forms and newsletters usually provided to parents.

The wife be authorised to provide a copy of this order to the Principal/s of X and Y’s school/s and to any of X and/or Y’s treating medical practitioners.

10.

The wife advise the husband in writing by email of any serious illness or injury suffered by either of X and/or Y and authorise X and Y’s treating medical practitioners to speak directly with the husband.

11.

The wife is authorised and permitted to apply for and receive an Australian passport for X and Y without first obtaining the written consent of the husband.

12.

The wife be permitted to take X and Y out of the Commonwealth of Australia without first obtaining the consent of the husband.

13.

The Independent Children’s Lawyer shall meet with X and Y to explain the orders to them within 14 days of the date of this order and the wife shall do all things necessary to make X and Y available to meet with the Independent Children’s Lawyer pursuant to this order.

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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