Hamilton and Coleman - [2016] FCCA 901

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMILTON & COLEMAN

[2016] FCCA 901

Catchwords:
FAMILY LAW – Parenting – children aged 4 & 3 living with their mother - where the father was originally seeking orders allowing him to spend time with the children but after years of conflict with the mother is now seeking an order that the children live with him – where the mother does not want the children to have a relationship with the father and is extremely confrontational and difficult to deal with – whether a change of residence should be considered – weight to be given to the children’s attachment to the mother.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant:

MR HAMILTON

Respondent:

MS COLEMAN

File Number:

NCC 496 of 2013

Judgment of:

Judge Terry

Hearing dates:

2,3 & 4 February 2015, 7 & 8 May 2015 and 27August 2015

Date of Last Submission:

27 August 2015

Delivered at:

Newcastle

Delivered on:

22 April 2016

REPRESENTATION

Counsel for the Applicant:

Mr Boyd

Solicitors for the Applicant:

Lyons Barnett Kennedy

Counsel for the Respondent:

Mr Bateman

Solicitors for the Respondent:	Legal Minds
Solicitor Advocate for the Independent Children’s Lawyer in February and May 2015	Mr Munday
Solicitors for the Independent Children’s Lawyer until 1 June 2015	Moin & Associates
Solicitor Advocate for the Independent Children’s Lawyer on 27 August 2015	Ms Wooi
Solicitors for the Independent Children’s Lawyer from 1 June 2015	Kristina Wooi

ORDERS

The father shall have sole parental responsibility for the children X born (omitted) 2011 and Y born (omitted) 2013 (“the children”).
The children shall live with the father.
The children shall spend time with the mother as follows:
(a)each alternate week during school terms from 4.00pm or the conclusion of school on Thursday to 9.00am or the commencement of school on Monday;
(b)upon X commencing school for one half of the Term 1, 2 & 3 school holiday periods being the first half of the school holidays in even numbered years commencing in 2016 and each alternate year thereafter and the second half of the school holidays in odd numbered years commencing in 2017 and each alternate year thereafter from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the day which is the mid-point of the school holidays or from 5.00pm on the day which is the mid-point of the school holidays until 5.00pm on the Sunday prior to the commencement of the new school term;
(c)upon X commencing school and subject to Orders 3(f) and (4) the children shall spend the first week and each alternate week of the school holidays with the mother in even numbered years commencing in 2016 and the second and each alternate week with the mother in odd numbered years commencing in 2017 from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the following Sunday or from 5.00pm on…

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 Hamilton and Coleman

Details

AGLC: Hamilton and Coleman [2016] FCCA 901
Case: [2016] FCCA 901
Decision Date: 22 April 2016

CaseChat Overview and Summary

This matter concerned an application before Judge Terry regarding the parenting arrangements for two young children, X and Y. The dispute centred on the children's living arrangements, parental responsibility, and the specific times each parent would spend with them.

The court was required to determine the best interests of the children, specifically considering the benefit of a meaningful relationship with both parents and the need to protect them from harm. The court also had to assess the parents' attitudes towards their responsibilities, the history of family violence applications, and the children's maturity, sex, and background.

Judge Terry found no evidence of family violence or risk of abuse or neglect by either parent. The primary consideration therefore became the benefit of a meaningful relationship with both parents. The judge accepted the father's genuine desire to spend quality time with the children without conflict and his commitment to supporting their relationship with the mother. The court noted the mother's history of making it difficult for the father to spend time with the children and her unsuccessful applications for family violence orders. The judge was satisfied that the children would have a meaningful relationship with the mother if they lived with the father, provided the mother did not jeopardise this.

The court ordered that the father have sole parental responsibility for the children and that they live with him. Detailed orders were made regarding the children's time with the mother, including specific arrangements for school terms, holidays, birthdays, and public holidays, with provisions for alternating arrangements and specific times for Christmas and Easter. The orders also included injunctions restraining the parents from denigrating each other, specified communication methods, and outlined procedures for medical care and school-related information.

Orders

Orders of the court

The father shall have sole parental responsibility for the children X born (omitted) 2011 and Y born (omitted) 2013 (“the children”).

The children shall live with the father.

The children shall spend time with the mother as follows:

(a) each alternate week during school terms from 4.00pm or the conclusion of school on Thursday to 9.00am or the commencement of school on Monday;

(b) upon X commencing school for one half of the Term 1, 2 & 3 school holiday periods being the first half of the school holidays in even numbered years commencing in 2016 and each alternate year thereafter and the second half of the school holidays in odd numbered years commencing in 2017 and each alternate year thereafter from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the day which is the mid-point of the school holidays or from 5.00pm on the day which is the mid-point of the school holidays until 5.00pm on the Sunday prior to the commencement of the new school term;

(c) upon X commencing school and subject to Orders 3(f) and (4) the children shall spend the first week and each alternate week of the school holidays with the mother in even numbered years commencing in 2016 and the second and each alternate week with the mother in odd numbered years commencing in 2017 from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the following Sunday or from 5.00pm on the Sunday until 5.00pm on the following Sunday;

(d) upon Y attaining the age of six, for one half of each Christmas school holiday period being the first half of the school holidays in even numbered years commencing in the 2016/2017 Christmas period and each alternate year thereafter and the second half of the school holidays in odd numbered years commencing in the 2017/2018 Christmas period and each alternate year thereafter from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the day which is the mid-point of the school holidays of from 5.00pm on the day which is the mid-point of the school holidays until 5.00pm on the Sunday prior to the commencement of the new school term.

(e) for Easter, to alternate each year between 9.00am on Good Friday to 11.00am on Easter Sunday in odd numbered years and 11.00am on Easter Sunday to 4.00pm on Easter Monday in even numbered years.

(f) for Christmas Day, alternately between 4.00pm on Christmas Eve to 1.00pm on Christmas Day in even numbered years and 1.00pm on Christmas Day to 1.00pm on Boxing Day in odd numbered years.

(g) in the event the children are not in the care of the mother on their birthdays from 3.00pm to 7.00pm.

Notwithstanding any other order the children shall spend time with the father for Christmas alternately between 4.00pm on Christmas Eve and 1.00pm on Christmas Day in odd numbered years and 1.00pm on Christmas Day to 1.00pm on Boxing Day in even numbered years.

Notwithstanding any other order if Mother’s Day falls on a weekend when the children would not ordinarily be with the mother the children shall spend time with the mother that weekend from 4.00pm on Saturday until 9.00am or the commencement of school on Monday.

Notwithstanding any other order if Father’s Day falls on a weekend when the children would ordinarily be with the mother, the mother shall return the children to the father at 4.00pm on Saturday rather than at 9.00am or the commencement of school on Monday.

In the event the children are not in the care of the father on their birthdays the children shall be returned to the father’s care from 3.00pm to 7.00pm.

Changeovers which do not take place at school because the children have not yet commenced school or the school is not open for attendance that day shall take place at McDonalds Restaurant at (omitted).

Each party shall behave civilly to the other at changeover and neither party shall attempt to discuss any issues concerning the care of the children with the other party at changeover.

10.

The parties shall communicate by the use of a communication book which will pass between them at changeover or by text message only for the purpose of issues relating to the care of the children.

11.

Each party shall keep the other informed of their current residential address and contact phone numbers and each party is to notify the other in writing within 14 days of any change to his/her current contact details.

12.

Each parent is restrained and an injunction is granted restraining them from denigrating the other party or a member of the other party’s family to or in the presence or hearing of the children.

13.

The father shall keep the mother advised by SMS text message of the medical practitioner(s) who he nominates will be the children’s treating doctor(s).

14.

The mother is restrained from taking the children to a medical practitioner during the time the children are in her care unless there is a medical emergency.

15.

The mother is restrained from taking the children to any medical practitioner other than practitioners engaged by the father to treat the children.

16.

Each of the parents is to ensure the children take any prescribed medications during the time that they are in their care.

17.

Each parent may obtain from the children’s school copies of newsletters, reports and order forms for school photographs and any other information normally provided to parents.

18.

Each parent may attend all events involving the children including:

(a) Sporting fixtures;

(b) Extra-curricular activities that allow for parental attendance;

(c) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

Background

Background to the litigation

I must consider the children’s maturity sex and background. The children are 4 and 3. Their age is relevant to the issue of whether any consideration should be given to substantially separating them from their primary attachment figure but I have discussed this in an earlier section of the judgment. I must consider any issues of family violence involving the parents. For reasons previously given I reject the mother’s allegations that she or B have experienced any family violence at the hands of the father. I must consider whether there are any family violence orders. The mother has made a number of applications for family violence orders, all ultimately unsuccessful. At the end of July 2012 the mother complained to police about the father and an interim Apprehended Domestic Violence Order (ADVO) was made against him. The father defended the matter and some months later the application was withdrawn by the police. The police again applied for an ADVO on the mother’s behalf in 2013 but the father defended the matter and the application was withdrawn by the police in November 2013. The police applied for an order on 5 March 2014 after a complaint by the mother but withdrew the application on the first return date of 25 March 2014. The mother filed an application on her own behalf seeking an ADVO against the father shortly after 27 February 2015. She alleged that the father and Ms A verbally abused her in the car park at the (omitted) Practice after the father had verbally abused the doctor inside the practice for writing referrals to specialists for the mother. She alleged that the father said that she was a “silly dumb bitch and a shit mother.”[17][17] Mother’s affidavit filed 6 May 2015 paragraph 1 She alleged that Ms A also called her a bitch and a dumb mother. The mother made a complaint to police but the police declined to assist her and she therefore made her own application for an ADVO. The father defended the application and on 28 April 2015 when the matter was mentioned in court the court declined to make the order. I must consider the parties attitude to the children and the responsibilities of parenthood. It was the mother’s case, and she made this clear to the family report writer in May 2014, that the father has always had an agenda of “taking the children from her” and would stop at nothing until he achieved that goal. I do not accept that this is correct. The father did not start out with the goal of removing the children from the mother or drastically reducing their time with her. The orders he originally sought were that the parties have equal shared parental responsibility and that the children live with the mother and spend age appropriate defined time with him. The father has changed his position only after a lengthy period of conflict and difficulty trying to be a part of the children’s lives. Insofar as the mother has made it difficult for the father to spend time with the children she has displayed a very poor attitude to the father and the responsibilities of parenthood.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The primary considerations in s.60CC(2) are:a)the benefit to the children of having a meaningful relationship with both of the children's parents; and b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. S.60CC (2A) provides that the court must prioritise (b) over (a) and I will therefore deal with (b) first. As outlined earlier there is no evidence that the father had ever committed acts of family violence and there is no evidence that he is likely to do so in the future nor is there any evidence that he is likely to abuse or neglect the children. There was also no evidence that the children were likely to be exposed to abuse as it is defined in the Family Law Act or to neglect or family violence in the care of the mother. The only relevant primary consideration therefore is (a), the benefit to the children of having a meaningful relationship with each of their parents and it is a pivotal consideration in this matter. It was the father’s case that he would support the children having a relationship with their mother if they lived with him and I accept that this is correct. The father did not have too many positive things to say about the mother. He criticised her to the Family Consultant for being disorganised and untidy and he was critical of what he considered to be her excessive concern about and overreaction to the children’s medical issues. However I consider that the father was being absolutely genuine in the following passage from his trial affidavit:I do not want to separate Y and X from Ms Coleman in these proceedings. I have never threatened to take the children away from Ms Coleman. All I want is to be able to spend more regular, quality time with them without drama caused by Ms Coleman. This is not a case in which there has been a flow of insulting or verbally abusive text messages from the father to the mother, he has withheld one of the children only once and that long ago and only for one night, he has co-operated with the children spending some special occasions with the mother and he made a reasonable proposal about the mother’s time with the children should they live with him. I am satisfied that if the children live primarily with the father he will not denigrate the mother to them and will comply with orders and that the children will be able to have a meaningful relationship with the mother unless the mother does something to put that at risk. I also note that the paternal grandmother who may well have more to do with the children if they live with the father is not hostile to the mother. She has been supportive of the mother since separation despite the fact that the mother has run hot and cold with her, on occasions asking for help with the child and on other occasions rejecting her. The paternal grandmother has helped the mother where she could when the mother has asked for help. In early 2014 for example she agreed to a request by the mother that she look after the children on Mondays and Fridays while the mother was at TAFE doing a (omitted) course and she also looked after the children when the mother did work experience.