Hamill and Hamill - [2009] FamCA 1324

FAMILY COURT OF AUSTRALIA

HAMILL & HAMILL

[2009] FamCA 1324

FAMILY LAW – CHILDREN – Whether sole parental responsibility should be granted to the mother – Orders sought after the conclusion of a final hearing – Consideration of the principles in Rice & Asplund and Marsden & Winch – which school the children should attend

Family Law Act 1975 (Cth) ss 61DA(1), 61DA(4), 60CC(2), 60CC(3)

Marsden & Winch [2009] FamCAFC 152
Rice & Asplund [1979] FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT:

Mr Hamill

RESPONDENT:

Ms Hamill

FILE NUMBER:

CAC

1524

2008

DATE DELIVERED:

25 November 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

24 – 25 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nash SC

SOLICITOR FOR THE APPLICANT:

Mr M. Eley, Watts McCray McGuinness Eley

COUNSEL FOR THE RESPONDENT:

Ms Tonkin

SOLICITOR FOR THE RESPONDENT:

Ms L. Strong, Strong Law Pty Ltd.

Orders

Order 1 made by me on 6 December 2007 is discharged, in lieu thereof the following orders are made:

The mother of the children, E, born on … July 2004, and L, born on … June 2006, will have sole parental responsibility for determining the school that they will attend.
Otherwise the parents will continue to share equally parental responsibility for the children.
The children’s mother be and is hereby restrained from relocating the children’s residence from the Australian Capital Territory/Canberra district without the prior written consent of the father.
The children will live with their mother and their father in accordance with the orders made by me in December 2007 seeing so far as those orders have not so far been implemented and in accordance with the program set out now relevantly in Orders 7 and 8 made on that day.
Pursuant to s 62B and s 65DA(2) 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 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 Fact Sheet a copy of which is annexed to these orders
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
I dismiss any other existing applications and remove this matter from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment under the pseudonym Hamill & Hamill is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1524…

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 Hamill and Hamill

Details

AGLC: Hamill and Hamill [2009] FamCA 1324
Case: [2009] FamCA 1324
Decision Date: 25 November 2009

CaseChat Overview and Summary

In the matter of *Hamill and Hamill*, heard by Faulks DCJ, the dispute concerned parenting orders for two children, E and L. The proceedings involved an application to vary existing orders, specifically regarding parental responsibility and the children's residence.

The court was required to determine the extent to which parental responsibility should be shared between the mother and father, particularly in relation to the children's schooling. Furthermore, the court had to consider whether to impose restrictions on the mother relocating the children's residence from the Australian Capital Territory/Canberra district.

His Honour discharged the previous order of 6 December 2007 and made new orders. The mother was granted sole parental responsibility for determining the children's school. Parental responsibility for all other matters was to continue to be shared equally between the parents. Crucially, the mother was restrained from relocating the children's residence from the Australian Capital Territory/Canberra district without the father's prior written consent. The children were to live with their mother and father in accordance with the previously made orders, as far as they had not been implemented, and a specified program. The court also issued a fact sheet detailing the obligations and consequences of contravening the orders, pursuant to sections 62B and 65DA(2) of the *Family Law Act 1975* (Cth). Any subpoenaed material not made an exhibit was to be returned, as was exhibit material after the appeal period. All other existing applications were dismissed.

Orders

Orders of the court

Order 1 made by me on 6 December 2007 is discharged, in lieu thereof the following orders are made:

The mother of the children, E, born on … July 2004, and L, born on … June 2006, will have sole parental responsibility for determining the school that they will attend.

Otherwise the parents will continue to share equally parental responsibility for the children.

The children’s mother be and is hereby restrained from relocating the children’s residence from the Australian Capital Territory/Canberra district without the prior written consent of the father.

The children will live with their mother and their father in accordance with the orders made by me in December 2007 seeing so far as those orders have not so far been implemented and in accordance with the program set out now relevantly in Orders 7 and 8 made on that day.

Pursuant to s 62B and s 65DA(2) 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 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 Fact Sheet a copy of which is annexed to these orders

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

I dismiss any other existing applications and remove this matter from the Pending Cases Inventory.

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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