Halley and Halley - [2011] FamCA 71

FAMILY COURT OF AUSTRALIA

HALLEY & HALLEY

[2011] FamCA 71

FAMILY LAW – CHILDREN - Best interests – Sole parental responsibility – No face-to-face contact – finding of substantial risk of psychological, emotional and physical harm of the children

Family Law Act 1975 (Cth)

APPLICANT:

Mr Halley

RESPONDENT:

Ms Halley

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

MLC

13613

2007

DATE DELIVERED:

17 February 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

18, 19, 20, 23 & 24 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Stewart

SOLICITOR FOR THE APPLICANT:

Kordell Lawyers

COUNSEL FOR THE RESPONDENT:

In person on 18, 19, 20 and part of 23 August 2010, no appearance on 24 August.

SOLICITOR FOR THE RESPONDENT:

n/a

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Spehr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Saines Lucas Solicitors

Orders

IT IS ORDERED THAT

All previous parenting orders in relation to the children of the marriage A born … May 2001, B born … February 2003 and C born … October 2004 (“the children”) be and are hereby discharged.
The husband have the sole parental responsibility of and for making all decisions with respect to the children.
The children live with the husband.
The children not spend face to face time with the wife other than as may be agreed in writing between the husband and the wife.
The wife communicate with the children as follows:
a.by telephone of up to 20 minutes duration with the husband to facilitate the children in making the call:
(i)on each of the children’s and the wife’s birthdays; and
(ii)on Mother’s Day, Easter Sunday and Christmas Day between 10:00am and 7:00pm;
b.by card or gift on each of the occasions referred to in sub-paragraph a. hereof;
c.by e-mail initiated by the wife on not more than one occasion in each calendar month; and
d.as may be otherwise agreed in writing between the husband and the wife.
For the purpose of ensuring the wife's compliance with paragraph 5 hereof, the husband be and is hereby authorised, at his sole discretion, as follows:
a.to monitor such telephone calls and terminate them if reasonably necessary for the children’s wellbeing; and
b.to first read any written correspondence sent to the children and supervise the same if reasonably necessary for the children’s wellbeing.
The husband and the wife each keep the other advised of their current residential address, home and mobile telephone numbers and e-mail addresses.
The wife be and is hereby restrained by herself, her servants and agents as follows:
a.spending time or communicating with any of the children other than in accordance with these orders;
b.attending any school, school event or like activity other than in accordance with these orders;
c.criticising the husband, the husband’s current wife Ms D, or any member of their families in the presence or hearing of the children;
d.discussing any issue or showing any document directly or indirectly relevant to these proceedings with any of the children; and

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 Halley and Halley

Details

AGLC: Halley and Halley [2011] FamCA 71
Case: [2011] FamCA 71
Decision Date: 17 February 2011

CaseChat Overview and Summary

In *Halley and Halley*, heard by Mushin J, the court was required to determine parenting orders concerning the three children of the marriage. The dispute centred on the appropriate arrangements for the children's living situation, parental responsibility, and communication with each parent, following previous orders.

The primary legal issues before the court were the allocation of sole parental responsibility, the determination of where the children would live, the extent of face-to-face and other forms of contact the wife would have with the children, and the conditions under which such contact could occur. The court also considered the husband's authority to monitor and supervise the wife's communication with the children, as well as specific prohibitions and requirements placed upon both parents to ensure the children's wellbeing and to regulate their interactions.

Mushin J ordered that all previous parenting orders be discharged. The husband was granted sole parental responsibility for the children, and the children were ordered to live with him. Face-to-face time between the children and the wife was significantly restricted, permitted only as agreed in writing between the parents. Communication was limited to specific telephone calls, cards, gifts, and emails on a monthly basis, with the husband authorised to monitor and terminate telephone calls and read correspondence if deemed necessary for the children's wellbeing. The wife was restrained from communicating with or spending time with the children other than as permitted by the orders, and was prohibited from criticising the husband or his current wife in the children's presence, discussing proceedings with them, or taking them to professionals without prior agreement, except in emergencies. The husband was required to inform the wife of hospitalisation concerning the children and to provide her with school reports and photographs at her expense.

Orders

Orders of the court

IT IS ORDERED THAT

All previous parenting orders in relation to the children of the marriage A born … May 2001, B born … February 2003 and C born … October 2004 (“the children”) be and are hereby discharged.

The husband have the sole parental responsibility of and for making all decisions with respect to the children.

The children live with the husband.

The children not spend face to face time with the wife other than as may be agreed in writing between the husband and the wife.

The wife communicate with the children as follows:

a. by telephone of up to 20 minutes duration with the husband to facilitate the children in making the call:

(i) on each of the children’s and the wife’s birthdays; and

(ii) on Mother’s Day, Easter Sunday and Christmas Day between 10:00am and 7:00pm;

b. by card or gift on each of the occasions referred to in sub-paragraph a. hereof;

c. by e-mail initiated by the wife on not more than one occasion in each calendar month; and

d. as may be otherwise agreed in writing between the husband and the wife.

For the purpose of ensuring the wife's compliance with paragraph 5 hereof, the husband be and is hereby authorised, at his sole discretion, as follows:

a. to monitor such telephone calls and terminate them if reasonably necessary for the children’s wellbeing; and

b. to first read any written correspondence sent to the children and supervise the same if reasonably necessary for the children’s wellbeing.

The husband and the wife each keep the other advised of their current residential address, home and mobile telephone numbers and e-mail addresses.

The wife be and is hereby restrained by herself, her servants and agents as follows:

a. spending time or communicating with any of the children other than in accordance with these orders;

b. attending any school, school event or like activity other than in accordance with these orders;

c. criticising the husband, the husband’s current wife Ms D, or any member of their families in the presence or hearing of the children;

d. discussing any issue or showing any document directly or indirectly relevant to these proceedings with any of the children; and

e. in the event that the wife spends any time with the children in accordance with these orders, taking the children or any of them to any psychologist, social worker, medical practitioner or like professional other than in the event of a physical emergency in which case she inform the husband thereof as soon as absolutely possible.

The husband be and is hereby required to -

a. forthwith advise the wife of any health issue concerning any of the children which requires hospitalisation; and

b. instruct and authorise any school or kindergarten attended by any of the children to provide to the wife at her expense copies of all reports and school and kindergarten photographs of and relating to the children as soon as practicable after preparation thereof.

10.

The husband be and is hereby authorised to provide a sealed copy of these orders to the principal or head of any school or kindergarten attended by each of the children.

11.

All parties forthwith return all copies of subpoenaed and exhibited documents to the Court in accordance with the order made on 9 August 2010.

12.

Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders

13.

All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

14.

General liberty be reserved to all parties to apply.

IT IS CERTIFIED

15.

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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