Halstead and Lees & Anor (No 4) - [2019] FamCA 999

FAMILY COURT OF AUSTRALIA

HALSTEAD & LEES AND ANOR (NO. 4)

[2019] FamCA 999

FAMILY LAW – CHILDREN – With whom a child spends time – Where the family consultant reports favourably on observed time between the father, the paternal grandmother and the children – Where prior to the observed time the father had not seen the children for two years – Where further observed and reportable time is proposed – Orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where the father argues that a finding made in error was a pivotal issue in making the overall determination and the matter should be reconsidered – Where the finding was made in error – Where the finding was not the pivotal factor in making the decision – No change to orders.

APPLICANT:

Mr Halstead

1st RESPONDENT:

Ms Lees

2nd RESPONDENT:

Ms Halstead

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

4768

2017

DATE DELIVERED:

20 December 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lindsay

SOLICITOR FOR THE APPLICANT:

Angela Ferdinandy

COUNSEL FOR THE 1ST RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE 1ST RESPONDENT:

Mellor Olsson

COUNSEL FOR THE 2ND RESPONDENT:

Ms Lewis

SOLICITOR FOR THE 2ND RESPONDENT:

Douglas Hoskins Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Roberts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That paragraphs 2, 3 and 4 of the Application in a Case filed by the father on 13 December 2019 be dismissed and the balance of the application be listed for hearing at 9.00 am on 12 March 2020.
That the father and the paternal grandmother spend time with X born … 2013 and Y born … 2015 (collectively “the children”) at the Family Court of Australia Adelaide Registry Childcare pursuant to s 65L of the Family Law Act 1975 (Cth) to be supervised by a Family Consultant on 30 and 31 December 2019 and 20 and 21 January 2020 subject to the following conditions:-
(a) That the visits be for a period of time not exceeding two (2) hours; and
(b) That the time spent visits shall be reportable.
That Order 5 of Orders made 23 October 2019 be conditional upon the maternal grandmother accompanying the children on all flights from Australia to Asia at the commencement of the proposed overseas travel and from Asia to Australia at the conclusion thereof.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halstead & Lees and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)),…

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 Halstead and Lees & Anor (No 4)

Details

AGLC: Halstead and Lees & Anor (No 4) [2019] FamCA 999
Case: [2019] FamCA 999
Decision Date: 20 December 2019

CaseChat Overview and Summary

This matter concerned an application by the father regarding time spent with his two children, X and Y. The dispute arose in the context of family law proceedings concerning the children's living arrangements. The decision was made by Berman J of the Family Court of Australia.

The court was required to determine whether to grant the father's application for observed time with the children, following a period of two years where he had not seen them. A further issue was whether a finding made in error during the proceedings warranted reconsideration of the overall determination.

Berman J considered a report from a family consultant which was favourable regarding observed time between the father, the paternal grandmother, and the children. The judge found that while an error had been made in a previous finding, it was not the pivotal factor in the court's overall determination. Consequently, the court made orders for the father and paternal grandmother to spend supervised time with the children on specific dates, subject to certain conditions regarding the duration of visits and their reportable nature. The court also made a conditional order relating to proposed overseas travel for the children.

Orders

Orders of the court

That paragraphs 2, 3 and 4 of the Application in a Case filed by the father on 13 December 2019 be dismissed and the balance of the application be listed for hearing at 9.00 am on 12 March 2020.

That the father and the paternal grandmother spend time with X born … 2013 and Y born … 2015 (collectively “the children”) at the Family Court of Australia Adelaide Registry Childcare pursuant to s 65L of the Family Law Act 1975 (Cth) to be supervised by a Family Consultant on 30 and 31 December 2019 and 20 and 21 January 2020 subject to the following conditions:-

(a) That the visits be for a period of time not exceeding two (2) hours; and

(b) That the time spent visits shall be reportable.

That Order 5 of Orders made 23 October 2019 be conditional upon the maternal grandmother accompanying the children on all flights from Australia to Asia at the commencement of the proposed overseas travel and from Asia to Australia at the conclusion thereof.

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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