Hadley and POCK - [2011] FMCAfam 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HADLEY & POCK

[2011] FMCAfam 117

FAMILY LAW – CHILDREN – Whether parents should equally share parental responsibility – whether time to be spent with mother should be overnight and/or supervised – whether there should be DNA parentage testing.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA

Aldridge & Keaton (2009) FLC 93-421
Brianna & Brianna (2010) FLC 93-437
Carpenter and Lunn (2008) FLC 93-382
Champness & Hanson (2009) FLC 93-407
Chappell (2008) FLC 93-377
Duroux v Martin (1993) FLC 92-432
F and R (1992) FLC 92-300
F & Z [2005] FMCAfam 394
Mills & Watson [2008] FMCAfam 2
Mulvaney & Lane (2009) FLC 93-404
Stirling & Dobson [2011] FMCAfam 52

Applicant:

MR HADLEY

Respondent:

MS POCK

File Number:

MLC 3517 of 2009

Judgment of:

Roberts FM

Hearing dates:

18 & 19 March; 24 & 25 May 2010

Date of Last Submission:

25 May 2010

Delivered at:

Launceston

Delivered on:

17 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr Robinson

Solicitors for the Applicant:

Plaza Legal

Counsel for the Respondent:

Ms Jenkins

Solicitors for the Respondent:

Maria Barbayannis & Co

ORDERS

That MR HADLEY (“the father”) have sole parental responsibility for the children [Y] born [in] 1995 (“[Y]”), [X] born [in] 1996 (“[X]”) and [W] born [in] 1998 (“[W]”).
That the children are to live with the father.
That [Y] and [X] are to spend time and communicate with MS POCK (“the mother”) in accordance with their wishes.
That [W] is to spend time with the mother as follows:
(a)each alternate weekend from 4.30 p.m. on Friday until 6.00 p.m. on Sunday, commencing on Friday 25 February 2011;
(b)each Wednesday from 4.30 p.m. until 7.30 p.m, commencing on Wednesday 23 February 2011;
(c)from 6 p.m. the night preceding Mothers’ Day until 6.00 p.m. on Mothers’ Day if she is not otherwise spending time with the mother;
(d)on [W]’s birthday from 4.30 p.m. until 7.00 p.m. if on a weekday and from 12.00 noon until 5.00 p.m. if during a weekend; and
(e)such further time as may be agreed between the mother and the father.
That for the purposes of Order No. 4 changeover is to occur at a place to be agreed between the father and the mother, but failing agreement outside the [G Police Station], Victoria.
That [W] is to communicate with the mother by telephone as initiated by [W].
That the father and the mother are to each keep the other advised of their current residential address and contact telephone numbers and each is to advise the other of any change within 24 hours of such a change.
That, subject to her first obtaining the father’s agreement in writing, the mother may attend the children’s school and extra curricular activities including but not limited to school concerts, parent/teacher interviews and sports days.
That the father and mother each keep the other advised of any serious medical condition or hospitalisation affecting any of the children while they are in his or…

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 Hadley and POCK

Details

AGLC: Hadley and POCK [2011] FMCAfam 117
Case: [2011] FMCAfam 117
Decision Date: 17 February 2011

CaseChat Overview and Summary

The Family Court of Australia considered an application by the mother for an order concerning the care, welfare and development of the children, born in 1995, 1996 and 1998. The court was asked to determine the issue of parental responsibility and the living arrangements of the children, including their contact with the mother. The father opposed the mother's application, asserting that the children should live with him and that the mother's involvement should be limited.

The legal issues before the court included determining the best interests of the children, allocating parental responsibility, and establishing a parenting arrangement that would facilitate the children's relationship with the mother. The court had to weigh the children's wishes, the mother's role, and the father's opposition, while ensuring the children's welfare and development.

The court found that it was in the children's best interests for the father to have sole parental responsibility and for the children to live with him. The court acknowledged the mother's significant role in the children's lives and granted her specific visitation and communication rights, particularly with the youngest child. The court's decision was based on the children's ages, their expressed wishes, and the need to balance the parents' roles in their upbringing. The court dismissed the mother's application for DNA parentage testing, finding it unnecessary given the established relationship between the mother and the children.

The court issued orders granting the father sole parental responsibility for the children, with specific arrangements for the children's time and communication with the mother, including detailed visitation schedules and contact methods. The court also required the parents to maintain communication regarding the children's health and school activities. The mother's application for DNA parentage testing was dismissed.

Orders

Orders of the court

That MR HADLEY (“the father”) have sole parental responsibility for the children [Y] born [in] 1995 (“[Y]”), [X] born [in] 1996 (“[X]”) and [W] born [in] 1998 (“[W]”).

That the children are to live with the father.

That [Y] and [X] are to spend time and communicate with MS POCK (“the mother”) in accordance with their wishes.

That [W] is to spend time with the mother as follows:

(a) each alternate weekend from 4.30 p.m. on Friday until 6.00 p.m. on Sunday, commencing on Friday 25 February 2011;

(b) each Wednesday from 4.30 p.m. until 7.30 p.m, commencing on Wednesday 23 February 2011;

(c) from 6 p.m. the night preceding Mothers’ Day until 6.00 p.m. on Mothers’ Day if she is not otherwise spending time with the mother;

(d) on [W]’s birthday from 4.30 p.m. until 7.00 p.m. if on a weekday and from 12.00 noon until 5.00 p.m. if during a weekend; and

(e) such further time as may be agreed between the mother and the father.

That for the purposes of Order No. 4 changeover is to occur at a place to be agreed between the father and the mother, but failing agreement outside the [G Police Station], Victoria.

That [W] is to communicate with the mother by telephone as initiated by [W].

That the father and the mother are to each keep the other advised of their current residential address and contact telephone numbers and each is to advise the other of any change within 24 hours of such a change.

That, subject to her first obtaining the father’s agreement in writing, the mother may attend the children’s school and extra curricular activities including but not limited to school concerts, parent/teacher interviews and sports days.

That the father and mother each keep the other advised of any serious medical condition or hospitalisation affecting any of the children while they are in his or her care and provide details of any medical treatment, including the names and contact details of doctors or hospitals responsible for treating the children and authorise such doctors or hospitals to provide information to the other parent if such authorisation is required.

10.

That the mother’s application for DNA parentage testing in relation to [W] is dismissed.

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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