FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAGERTY & HAGERTY | [2019] FCCA 1997 |
| Catchwords: FAMILY LAW – Parenting – undefended – where the father failed to comply with orders – where medical certificates were inadequate to establish inability to attend Court – sole parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 62B, 62G, 65D, 65DA, 65DAA, 68B, 90XZD Evidence Act 1995 (Cth) s.140 Federal Circuit Court Rules 2001 (Cth) rr.16.05, 24.07 Australian Passports Act2005 (Cth) |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Squire v Rogers (1979) 27 ALR 330 M & M(1988) FLC 91-979 Haset Sali v SPC Limited and Anor (1993) 116 ALR 625 N v S (1996) FLC 92-655 A & A & The Child Representative(1998) FLC 92-800 Allesch v Maunz (2000) 203 CLR 172 In the Marriage of JRD & MD (2000) 26 FamLR 731 Re W; Sex Abuse (Standard of Proof) (2004) 32 Fam LR 249 Goode & Goode (2006) FLC 93 – 286 Napier & Hepburn(2006) FLC 93-303 Tait & Densmore [2007] FamCA 1383 Mazorski & Albright (2007) 37 FLR 518 Godfrey & Sanders (2007) 208 FLR 287 M & S (formerly E) (2007) FLC 93-313 Johnson & Page (2007) FLC 93-344 Moose & Moose (2008) FLC 93-375 Aon Risk Services Australia Limited v Australian National University (2009) Marvel [2010] FamCAFC 101 Farmer & Rogers [2010] FamCAFC 253 Harridge & Anor & Harridge[2010] FamCA 445 MRR & GR [2010] HCA 4 Jarrah & Fadel [2014] FamCAFC 14 Medlon & Medlon (No. 4) [2015] FamCAFC 70 Gazal & Belros [2015] FamCAFC 92 Elgin & Elgin (2015) 54 Fam LR 31 Banks & Banks (2015) FLC 93-637 Gorman & Huffman [2016] FamCAFC 174 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Yannes & Judkins [2019] FCCA 1656 |
| Applicant: | MS HAGERTY |
| Respondent: | MR HAGERTY |
| File Number: | SYC 4302 of 2016 |
| Judgment of: | Judge Morley |
| Hearing dates: | 30 April – 2 May 2019 |
| Date of Last Submission: | 2 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Longworth |
| Solicitors for the Applicant: | Sexton Family Law |
| No appearance for the Respondent |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Ark Law Lawyers |
ORDERS
The Application in a Case filed by the Respondent father on 22 April 2019 is dismissed.
That the Mother have sole parental responsibility for the children X, born … 2012, and Y, born … 2014 (“the children”).
That the children live with their Mother.
That the Father spend time with the children only as may be agreed between the parents in writing, signed by them both.
That subject to anything that may be agreed between the parents in writing, signed by them both, the Father is not permitted to communicate with the children other than by providing them, through their Mother, with cards, letters, or gifts, with such cards, letters, or gifts to be forwarded by the Father directly to the Mother…
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- AGLC
- HAGERTY & HAGERTY [2019] FCCA 1997
- Case
- [2019] FCCA 1997
- Decision Date
CaseChat Overview and Summary
The court was required to consider the father's non-compliance with prior orders and the adequacy of his medical evidence. The central legal question was whether the mother should be granted sole parental responsibility for the children, and what specific orders regarding the children's living arrangements, the father's time with them, and communication between the father and children were in the children's best interests, particularly in light of the father's past conduct. The court also had to address protective measures for the children and the mother.
Judge Morley reasoned that the father's failure to attend court and his non-compliance with previous orders demonstrated a lack of commitment to the children's welfare and the court process. The inadequacy of the medical certificates provided by the father further supported the conclusion that his absence was not sufficiently justified. Applying the principles of the *Family Law Act 1975* (Cth), particularly those concerning the best interests of the child and the need for orders to protect children and parties, the court made orders granting the mother sole parental responsibility. The orders also stipulated that the children live with the mother, and detailed specific, limited arrangements for the father's time with and communication with the children, including restrictions on his proximity to the mother and children, and requirements for mutual notification of contact details and children's reports.
Orders
Orders of the court
1.
The Application in a Case filed by the Respondent father on 22 April 2019 is dismissed.
2.
That the Mother have sole parental responsibility for the children X, born … 2012, and Y, born … 2014 (“the children”).
3.
That the children live with their Mother.
4.
That the Father spend time with the children only as may be agreed between the parents in writing, signed by them both.
5.
That subject to anything that may be agreed between the parents in writing, signed by them both, the Father is not permitted to communicate with the children other than by providing them, through their Mother, with cards, letters, or gifts, with such cards, letters, or gifts to be forwarded by the Father directly to the Mother and not directly to the children.
6.
That after one month from the date of these orders, the Father may email the Mother, no more than once each month, for updates in relation to the children, including each child’s emotional, intellectual and medical needs, progress at school, social and physical development, and the Mother will respond by email to the Father about these matters within 21 days of receiving each such written request.
7.
That within 14 days of receiving the children’s school reports, the Mother will email a copy of each report to the Father.
8.
The Mother notify the Father by email as soon as practicable in the event of either of the children suffering a serious illness or having a serious accident.
9.
That pursuant to section 68B of the Family Law Act 1975 (Cth), and for the personal protection of X born … 2012, Y born … 2014, and Ms Hagerty (formerly known as Hagerty), the Father be restrained from:
(a) Attending either child’s school, school events, sporting activities and social events without the Mother’s prior written consent; and
(b) Coming within 100 metres of the Mother, her residence, her place of work, the children’s school and pre-school.
10.
That both parties by injunction and restrained from:
(a) Denigrating or criticising the other parent or their family in the presence or hearing of the children, or allowing any third person to do so; and
(b) Discussing the proceedings in the presence or hearing of the children or allowing any third person to do so.
11.
That the Mother is solely appointed to give consent to the issue of a passport for the children under the Australian Passports Act 2005 (Cth) and for the renewal of each child’s passport at the Mother’s cost from time to time.
12.
The Mother may take the children from Australia to travel overseas for a holiday provided that she gives to the Father at least 4 weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline (or other carrier) with whom the child will be travelling, members of the travelling party in the case of family holidays, the intended destination and the intended date and time of return and subject to the trip.
13.
The Mother will hold the children’s passports in her safe custody.
14.
The Mother keep the Father informed by written communication of a working email account for the Mother, and is to notify the Father of any changes to same from time to time.
15.
The Father keep the Mother informed by written communication of his working email account and of the full address where he is living, and is to notify the Mother of any changes from time to time.
16.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if either party contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the attachment to these orders and these particulars are included in these orders.
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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