Hadlow & Davis - [2020] FamCA 161

FAMILY COURT OF AUSTRALIA

HADLOW & DAVIS

[2020] FamCA 161

FAMILY LAW – CHILDREN – Parental Responsibility – Best interests of the child – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility –Where the mother has been making the decisions with respect to the major issues affecting the child – Where the father has been excluded from decisions – Where the parties’ communication has been limited and acrimonious – Orders

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Best interests of the child – Where the mother seeks to relocate the child to the State of Queensland – Where the mother had previously unilaterally relocated the child to the State of Queensland – Where the court ordered the return of the child – Where the mother complied with the order to return the child but now seeks to relocate – Where the mother is unlikely to support the child maintaining a meaningful relationship with the father if permitted to relocate – Orders

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the father seeks the child live with him and spend time with the mother – Where the mother seeks the child live with her and spend time with the father – Where the child has been living with the mother and spending time with the father – Where the mother alleged the father sexually abused the child – Where the father denied the allegation – Where the allegations were not substantiated – Where the mother no longer relies upon the allegations – Where it is in the child’s best interests to remain in the primary care of the mother and spend reasonable time with the father – Orders

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 69ZN, 69ZT
Family Law Rules 2004 (Cth) r 15.13

AMS v AIF (1999) 199 CLR 160
Blanding & Blanding [2016] FamCAFC 21
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright [2007] FamCA 520
Starr & Duggan [2009] FamCAFC 115
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Hadlow

RESPONDENT:

Ms Davis

FILE NUMBER:

ADC

3076

2017

DATE DELIVERED:

19 March 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11 - 15 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Janson Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE RESPONDENT:

Andersons Solicitors

Orders

That all previous parenting orders be discharged.
That the parties have shared parental responsibility for Z born … 2016 (“the child”) EXCEPT that the mother shall have sole parental responsibility for any major issue affecting the child’s health PROVIDED that she shall use her best endeavours to reach agreement with the father but if unable to do so THEN the mother shall make the necessary decisions and advise the father as soon as is…

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 Hadlow & Davis

Details

AGLC: Hadlow & Davis [2020] FamCA 161
Case: [2020] FamCA 161
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the Family Court of Australia, Berman J considered a dispute between a father and mother concerning the parenting arrangements for their child, Z. The father sought equal shared parental responsibility, while the mother sought sole parental responsibility. The mother had previously made unilateral decisions regarding major issues affecting the child and had been excluded from decision-making processes. Communication between the parties was described as limited and acrimonious. The mother also sought to relocate the child to Queensland, having previously unilaterally relocated the child there, which had resulted in a court order for the child's return. The court found that the mother was unlikely to support the child maintaining a meaningful relationship with the father if the relocation were permitted.

The court was required to determine the best interests of the child, specifically regarding parental responsibility, with whom the child would live, and the extent of time the child would spend with each parent. Key issues included the mother's prior unsubstantiated allegations of sexual abuse against the father, which she no longer relied upon, and the mother's desire to relocate the child to Queensland. The court also had to consider the existing living arrangements where the child lived with the mother and spent time with the father.

Berman J ordered that previous parenting orders be discharged. The parties were granted shared parental responsibility for Z, with the exception that the mother would have sole responsibility for major health issues, provided she made best endeavours to agree with the father and advised him of decisions if agreement could not be reached. The child was ordered to live with the mother and spend time with the father according to a detailed schedule, which included specific arrangements for weekends, weekdays, school holidays, and Christmas. The court also made orders regarding communication, school information, medical information, and injunctions restraining certain behaviours, including recording handovers, physical discipline, attending medical facilities when the other parent or family were present, and posting photos of the child on social media. The father's time with the child during school holidays was suspended unless otherwise specified. Handover locations were also specified.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the parties have shared parental responsibility for Z born … 2016 (“the child”) EXCEPT that the mother shall have sole parental responsibility for any major issue affecting the child’s health PROVIDED that she shall use her best endeavours to reach agreement with the father but if unable to do so THEN the mother shall make the necessary decisions and advise the father as soon as is reasonably practicable thereafter.

That the child live with the mother and spend time with the father as follows:-

(a) From the date of these orders until 27 April 2021 each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday and each Wednesday from 5.00 pm to 7.00 pm;

(b) From 27 April 2021:-

(i) Each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday commencing 30 April 2021;

(ii) Each alternate Wednesday from the conclusion of school until 7.00 pm commencing 5 May 2021;

(iii) In odd numbered years for each of the short end of term holidays from 5.00 pm on the first Sunday until 5.00 pm on the following Saturday commencing 2021 and from 5.00 pm on the second Sunday until 5.00 pm on the following Saturday in even numbered years commencing 2022;

(c) In even numbered years for the long summer holiday period during the second week of the holiday period from 5.00 pm on the second Sunday until 5.00 pm on the following Saturday and during the fourth week of the holiday period from 5.00 pm on Sunday until 5.00 pm on the following Saturday;

(d) In odd numbered years for the long summer holiday period during the first week of the holiday period from 5.00 pm on the first Sunday until 5.00 pm on the following Saturday and during the third week of the holiday period from 5.00 pm on the third Sunday until 5.00 pm on the following Saturday;

(e) From 6.00 pm on Christmas Eve to 2.00 pm Christmas Day in 2020 and each alternate year thereafter and from 2.00 pm Christmas Day to 6.00 pm Boxing Day in 2021 and each alternate year thereafter PROVIDED that the child shall be with the mother from 2.00 pm Christmas Day to 6.00 pm Boxing Day in 2020 and each alternate year thereafter and from 6.00 pm Christmas Eve to 2.00 pm Christmas Day in 2021 and each alternate year thereafter.

(f) In the event that the father is not already spending time with the child pursuant to these orders as follows:-

(i) Easter Sunday from 9.30 am until 12.30 pm;

(ii) Father’s Day from 9.30 am until 5.00 pm;

(iii) The father’s birthday from 3.45 pm until 5.45 pm;

(iv) The child’s birthday from 3.45 pm until 5.45 pm;

(g) With the mother in the event that the mother is not already spending time with the child pursuant to these orders as follows:-

(i) Easter Sunday from 9.30 am until 12.30 pm;

(ii) Mother’s Day from 9.30 am until 5.00 pm;

(iii) The mother’s birthday from 3.45 pm until 5.45 pm;

(iv) The child’s birthday from 3.45 pm until 5.45 pm.

(h) At other times as may be agreed.

That the father’s time with the child pursuant to paragraph 3(a),(b)(i) and (ii) shall be suspended during all school holiday periods other than as provided for herein.

That handover that is not able to occur at the child’s school shall take place at the Subway Restaurant located at L Street, Suburb N in the State of South Australia or such other place as the parties may agree.

That the parties keep each other informed of their residential address in South Australia and shall advise the other of any change within seven (7) days.

That the parties will do all things necessary to authorise the school attended by the child to provide to each of the parties copies of school reports, notices and invitations normally provided by the school to parents, to include photograph ordering forms and the parties will make their own arrangements with respect to ordering and paying for any such photographs of the child.

That each party may liaise directly with the child’s school/kindergarten, sporting bodies and any other organisation in respect of any other extra-curricular activity in which the child engages in order to receive notices, information, newsletters about the child’s progress both in terms of the curricular and extra-curricular activities that the child engages in.

Each party shall keep the other informed of any changes to the child’s health while the child is in their separate care and as soon as practical notify the other parent of any medical emergency involving the child.

10.

That the parties do authorise any doctor or other medical specialist upon whom the child attends to provide to each of them all information that they may request with respect of the child and copies of any reports arising at their own separate cost.

11.

That the parties are hereby restrained and injunctions granted restraining them from:-

(a) Recording or allowing anyone to record handovers (excluding the handover location if the location has a CCTV security system);

(b) From physically disciplining or allowing any other person to physically discipline the child;

(c) Attending a medical facility where the child is present (in the event of a medical emergency) during times when the other party and/or the maternal and/or paternal family are present.

(d) From posting photos or videos of the child on social media or allowing another person to post photos or videos.

12.

That the parties are to forthwith remove all photographs that have been posted on social media.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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