Halstead and Lees and Anor

Case [2018] FCCA 425


FEDERAL CIRCUIT COURT OF AUSTRALIA

HALSTEAD & LEES & ANOR [2018] FCCA 425
Catchwords:
FAMILY LAW – Interim arrangements for parenting of two children aged 4 & 2 – interim application for property settlement – father seeks to spend time with children at rehabilitation centre – father severely injured in altercation with another person at the children’s home – father charged with serious criminal offences – application by paternal grandmother to spend time with the children – family violence – have children been exposed to family violence – nature of interim hearing – matter to be considered on interim property application – presumption of equal shared parental responsibility – best interests.

Legislation:

Family Law Act 1975, ss.60CC, 90SM, 90SF

Cases cited:

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Goode & Goode (2006) FLC 92-286
Re K (1994) FLC 92-461
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Slater & Light [2013] FamCAFC 4
Strahan v Strahan (2010) 42 Fam LR 203

Applicant: MR HALSTEAD
First Respondent: MS LEES
Second Respondent: MS HALSTEAD
File Number: ADC 4768 of 2017
Judgment of: Judge Brown
Hearing date: 20 February 2018
Date of Last Submission: 20 February 2018
Delivered at: Adelaide
Delivered on: 23 February 2018

REPRESENTATION

Counsel for the Applicant: Mr McGinn
Solicitors for the Applicant: Howe Jenkin
Counsel for the First Respondent: Ms Dickson
Solicitors for the First Respondent: Tindall Gask Bentley
Counsel for the Second Respondent: Ms Lewis
Solicitors for the Second Respondent: Douglas Hoskins Legal
Counsel for the Independent Children's Lawyer: Mr Stephen
Solicitors for the Independent Children's Lawyer: Legal Services Commission

ORDERS

Until further or other order:

  1. The children of the relationship [X] born (omitted) 2013 and [Y] born (omitted) 2015 (hereinafter referred to as “the children”) live with the mother and she be responsible for making parenting decisions in respect of them.

  2. The children spend time with the paternal grandmother Ms Halstead as follows:

    (a)On alternate Sundays, commencing 4 March 2018, between the hours of 10:00am and 5:00pm subject to the following conditions: namely;

    (i)The time occur at the home of the maternal great-grandmother at unit (omitted) and be subject to the supervision of the maternal grandmother Ms W.

    (ii)In the event that either of the children enquire with any of the adults present during the above visits as to the whereabouts of the father, they are to respond by informing the children that the father is “away working” or words to this effect.

  3. The father’s application to restrain the mother from attending the (omitted) Church in (omitted), with the children, is dismissed.

  4. The parties jointly commission Ms R, at their joint expense, to prepare a family assessment report to be released to the parties and the court on or before 30 June 2018. 

  5. The further hearing of the proceedings be fixed for 16 July 2018 at 9:30am.

By way of interim property settlement:

  1. The father is authorised, by…

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Halstead and Lees and Anor [2018] FCCA 425
Case
[2018] FCCA 425
Decision Date

CaseChat Overview and Summary

This matter concerned parenting and property settlement applications between the father and mother of two children, [X] and [Y]. The paternal grandmother, Ms Halstead, also sought orders for time with the children. The proceedings were before Judge Brown.

The court was required to determine the interim living arrangements for the children, including the extent of time they would spend with their paternal grandmother. Additionally, the court needed to consider the father's application to restrain the mother from taking the children to a particular church and to make interim orders regarding the parties' property and financial affairs, including the sale of a motor vehicle and access to superannuation.

In relation to parenting, Judge Brown ordered that the children live with the mother and that she be responsible for parenting decisions. The children were to spend time with the paternal grandmother on alternate Sundays, supervised by the maternal grandmother at the maternal great-grandmother's home. The court also ordered that if the children enquired about the father, they were to be told he was "away working". The father's application to restrain the mother from attending church with the children was dismissed. Interim property orders included authorising the father to sell his motor vehicle to fund his legal costs, and authorising the mother to draw down an equivalent amount from her savings account for her legal costs. The mother was restrained from diminishing her assets, except for ordinary business or living expenses. The father was ordered to inform the mother's solicitor of any applications made regarding his superannuation and the outcomes thereof. A family assessment report was ordered, and the proceedings were adjourned for further hearing.

Orders

Orders of the court

Until further or other order:

1.

The children of the relationship [X] born (omitted) 2013 and [Y] born (omitted) 2015 (hereinafter referred to as “the children”) live with the mother and she be responsible for making parenting decisions in respect of them.

2.

The children spend time with the paternal grandmother Ms Halstead as follows:

(a) On alternate Sundays, commencing 4 March 2018, between the hours of 10:00am and 5:00pm subject to the following conditions: namely;

(i) The time occur at the home of the maternal great-grandmother at unit (omitted) and be subject to the supervision of the maternal grandmother Ms W.

(ii) In the event that either of the children enquire with any of the adults present during the above visits as to the whereabouts of the father, they are to respond by informing the children that the father is “away working” or words to this effect.

3.

The father’s application to restrain the mother from attending the (omitted) Church in (omitted), with the children, is dismissed.

4.

The parties jointly commission Ms R, at their joint expense, to prepare a family assessment report to be released to the parties and the court on or before 30 June 2018.

5.

The further hearing of the proceedings be fixed for 16 July 2018 at 9:30am.

By way of interim property settlement:

6.

The father is authorised, by this order to sell the Toyota motor vehicle currently in his possession and utilise the funds generated by its sale to finance his legal costs.

7.

The wife is authorised to draw down from the moneys currently standing in her name in the (omitted) long term savings account, a dollar for dollar amount equivalent to the sum generated by the sale of the Toyota motor vehicle referred to in order (5) above to finance her legal costs.

8.

The mother be restrained and injunctions are hereby granted restraining her from:

(a) Transferring, encumbering or otherwise diminishing the assets in her possession save and except:

(i) In the course of ordinary business expenses, or reasonable living expenses including attending to [X]’s needs;

(ii) Other than in respect of the moneys referred to in order (6) above.

(b) Drawing down on the mortgage or any other credit facility secured upon the Property A property.

9.

The father inform the mother’s solicitor within seven days of each and all of the following incidence arising in respect of his (omitted) superannuation including any insurance policy ancillary to that superannuation:

(a) The father applies to the relevant trustee to access any or all of his superannuation on the ground of total and permanent incapacity;

(b) The father applies to be indemnified in respect of any insurance policy relating to his superannuation for total and permanent bodily impairment;

(c) The response of the relevant trustee or insurance officer in respect of such application;

(d) The amount of any funds to be released to the father and the date anticipated for their release.

10.

The further consideration of the application in respect of the costs reserved arising from the aborted hearing of 19 January 2018 is adjourned to the adjourned date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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