Hagans & Hagans - [2023] FedCFamC2F 410

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hagans & Hagans [2023] FedCFamC2F 410

File number(s): SYC 3076 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 14 April 2023

Catchwords: FAMILY LAW – parenting – application for final orders – where Father seeks graduated regime at two yearly intervals culminating in week about time when the child reaches Year 7 – where the Mother seeks to retain the current regime of five nights a fortnight with the Father – where the Court finds it is in the child’s best interests to spend a graduated regime of substantial and significant time with the Father culminating in equal time from the child commencing Year 7

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 65DAB, 65Y.

Cases cited: Grella & Jamieson [2017] FamCAFC 21

Division: Division 2 Family Law

Number of paragraphs: 165

Date of hearing: 5, 6 and 27 May 2022

Place: Sydney

Counsel for the Applicant: Ms Cantrall

Solicitor for the Applicant: Pearson Emerson Family Lawyers

Counsel for the Respondent: Mr Williams KC

Solicitor for the Respondent: Newnhams Solicitors
ORDERS

SYC 3076 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HAGANS

Applicant

AND:
MS HAGANS

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

14 April 2023

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility in respect of making decisions about issues concerning the long term care, welfare and development of the child X born in 2015 (“X”).
2.The mother have sole responsibility for making decisions for the day to day care, welfare and development of X when X lives with her and the father have sole responsibility for making such decisions when X spends time with and lives with him.
3.Until X commences Year 7, X live with the mother.
4.Until X commences Year 4, X spend time with the father as agreed between the parties in writing, and failing agreement:
(a)During school term:
(i)Each Wednesday from the end of school until the start of school on Thursday;
(ii)Each alternate weekend from the end of school on Friday until the start of school on Monday, or 3.30pm on Monday if a public holiday including bank holiday, commencing on a date to be confirmed but which coincides with Week 2 of the two weekly cycle for E and F as referred to in paragraph 4b of the Affidavit of Mr D filed 27 January 2022 and resuming at the commencement of each school term as if the school holiday period had not taken place so that if X was spending time with the father during the last weekend of the school term, the alternate weekends with the father will recommence on the second weekend of the following school term and if X was spending time with the father during the second last weekend of the school term, the alternate weekends with the father will recommence on the first weekend of the following school term;

(b)During the…

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 Hagans & Hagans

Details

AGLC: Hagans & Hagans [2023] FedCFamC2F 410
Case: [2023] FedCFamC2F 410
Decision Date

CaseChat Overview and Summary

The case of Hagans & Hagans involves a dispute between Mr Hagans, the father, and Ms Hagans, the mother, regarding the parenting arrangements for their daughter X, born in 2015. The primary issue before the court was the amount of time X should spend with her father, whether it should remain as per the interim orders of five nights per fortnight during school terms and half of the school holidays, or increase by three steps, two years apart, to a fully shared care arrangement on an alternate week basis during school term and half the school holidays. The mother expressed concerns about potential risks to X in her father's care, which the father denied. The court found no evidence to support the mother's assertions of any such risks. The court considered the best interests of X as the paramount consideration, taking into account the benefits of a meaningful relationship with both parents.

After carefully considering the evidence, the court determined that it was in X's best interests for her to spend substantial and significant time with each of her parents, graduating from five nights per fortnight to six nights per fortnight when she commences Year 4, and then graduating to an equal time arrangement once she commences high school in Year 7. The court also made orders for the parents to have equal shared parental responsibility for X, and for various other parenting arrangements, such as changeovers, communication with the non-carer parent, overseas travel, and school enrolment.

The court found that the parents have demonstrated a wholly appropriate attitude to the child and the responsibilities of parenthood. Both parents have taken every opportunity available to participate in making decisions about major long-term issues for the child, to spend time with the child, and to communicate with the child. The court also found that both parents have the capacity to provide for the needs of the child, including emotional and intellectual needs.

In conclusion, the court made orders providing for the child to have substantial and significant time with each of the parents, graduating from five nights per fortnight to six nights per fortnight when she commences Year 4, and then graduating to an equal time arrangement once she commences high school in Year 7. The court also made orders for the parents to have equal shared parental responsibility for the child, and for various other parenting arrangements, such as changeovers, communication with the non-carer parent, overseas travel, and school enrolment.

Orders