HANAHAN & LEWIS - [2012] FamCA 29

FAMILY COURT OF AUSTRALIA

HANAHAN & LEWIS

[2012] FamCA 29

FAMILY LAW – CHILDREN – Parenting orders – best interests of the child – where the father abducted the child in the past and took the child overseas – child was returned to the mother after the father was arrested – father was consequently convicted of criminal offences – the mother is living overseas – the child is living with the mother – the child has lived with the mother and spent no time with the father since being returned from her abduction – mother fears the father – mother lacks willingness and ability to facilitate the child’s relationship with the father – father lacks capacity to provide for the child’s needs – allegations of past family violence – no findings made about family violence – family violence is not a current issue – mental health issues – presumption of equal shared parental responsibility rebutted – mother has sole parental responsibility for the child – child will spend no time with the father – father permitted to produce written communication to the child – written communication to be kept on Court file – child may view written correspondence upon attaining 18 years of age.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – final hearing – father’s application to adjourn final hearing – father’s bases for adjournment were that he had no opportunity to prepare his case – no opportunity to file affidavit material or expert evidence – matter adjourned on numerous occasions in the past to enable the father to prepare case and to file affidavit material and to obtain expert report – father failed to act – application for adjournment dismissed

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

Aldridge & Keaton (2009) FLC 93-421
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Rowell & Keough [2011] FamCAFC 74

APPLICANT:

Ms Hanahan

RESPONDENT:

Mr Lewis

INDEPENDENT CHILDREN’S LAWYER:

Ms Reid

FILE NUMBER:

SYF

4159

2006

DATE DELIVERED:

3 February 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

29 April 2010

30 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Richardson SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT:

Self-represented litigant

COUNSEL FOR THE INDEPENDENT

CHILDREN’s LAWYER:

Ms F. Reid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Reid Family Lawyers

Orders

All previous parenting orders are discharged.
The mother, MS HANAHAN (born … 1967), shall have sole parental responsibility for the child, H LEWIS (born … February 2004).
As part of the mother’s sole parental responsibility for the child, the mother:
(a)Shall be solely entitled to hold the child’s passports and, if necessary, apply for or renew such passports without the consent of the father; and
(b)Be permitted to change the child’s surname to “Hanahan”, notwithstanding the consent of the father has not been obtained.
(i)The Registrar of Births Deaths & Marriages is hereby ordered and directed to do all things necessary to…

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 HANAHAN & LEWIS

Details

AGLC: HANAHAN & LEWIS [2012] FamCA 29
Case: [2012] FamCA 29
Decision Date: 3 February 2012

CaseChat Overview and Summary

This matter concerned parenting orders for the child, H Lewis, involving the child's mother, Ms Hanahan, and father, Mr Lewis. The dispute arose in the context of past parental abduction by the father, which resulted in the child being returned to the mother overseas. The mother expressed fear of the father and a lack of willingness and ability to facilitate the child's relationship with him, while the father was found to lack the capacity to provide for the child's needs. Allegations of past family violence were raised but no findings were made, and family violence was not considered a current issue. The court was presided over by Faulks DCJ.

The primary legal issues before the court were whether the presumption of equal shared parental responsibility should be rebutted, and consequently, what parenting orders were in the best interests of the child, particularly concerning the child's time with and communication with each parent. The court also had to determine the father's application to adjourn the final hearing, which had been adjourned on multiple previous occasions to allow the father to prepare his case and file necessary affidavit and expert evidence, which he had failed to do.

The court dismissed the father's application for an adjournment, noting his repeated failure to comply with previous orders to prepare his case. Applying the principles of the best interests of the child, the court found that the presumption of equal shared parental responsibility was rebutted due to the father's past conduct, his lack of capacity to meet the child's needs, and the mother's fear and inability to facilitate contact. Consequently, the court ordered that the mother have sole parental responsibility for the child, that the child live with the mother, and that the child spend no time with the father. However, the father was permitted to send written communication and gifts to the child twice a year, which would be held by the Court and made available to the child upon reaching 18 years of age, or earlier with the mother's written consent. The court also made orders regarding the child's passports, surname change, and the return of funds and documents.

Orders

Orders of the court

All previous parenting orders are discharged.

The mother, MS HANAHAN (born … 1967), shall have sole parental responsibility for the child, H LEWIS (born … February 2004).

As part of the mother’s sole parental responsibility for the child, the mother:

(a) Shall be solely entitled to hold the child’s passports and, if necessary, apply for or renew such passports without the consent of the father; and

(b) Be permitted to change the child’s surname to “Hanahan”, notwithstanding the consent of the father has not been obtained.

(i) The Registrar of Births Deaths & Marriages is hereby ordered and directed to do all things necessary to amend the child’s details on the Register.

The child shall live with the mother.

The father, MR LEWIS (born … 1968) shall spend no time with or communicate with the child, except as provided in Order 6 below.

The father may, if he wishes to do so, send letters and/or gifts (the “information”) to the child on two occasions per year approximating with 1 July in each year and the period immediately before Christmas in accordance with the orders below:

(a) The letters may set out in written form his thoughts and feelings about the child and record some of the events that have happened to him since he last communicated in this way;

(b) Such information will be sent to the postal address of the Sydney registry of the Family Court of Australia, marked to the attention of the Registry Manager of the Sydney registry (“the Registry Manager”);

(c) The Registry Manager will keep such information in an accessible form on the basis that it may be made available to the child if she seeks such access to the information after she attains the age of 18 years;

(d) No other person will have access to the information, which will be kept segregated and sealed pending the child’s approach to the Court for access to the information.

Notwithstanding the last two suborders if, before she turns 18, the child seeks access to the information on the Court file with the written consent of her mother, the Registry Manager for the time being of the Sydney registry of the Family Court of Australia may make the information available to the child.

The Independent Children’s Lawyer shall communicate to the child by letter or by telephone or both, that the father may send letters and/or gifts to the child in accordance with Order 6 above , and that such letters and gifts may be made available to the child in the future in accordance with Orders 6 and 7 above.

The mother shall, from time to time, remind the child that the information as described in Order 6 above may be made available to the child.

10.

The funds held in a controlled monies account by the solicitors for the mother (Barkus Edwards Doolan, as then known) and the former solicitors for the father (Gray & Perkins) on behalf of the parties pursuant to Order 6 of the Orders made on 12 October 2007 be released and returned to the mother.

11.

The sealed envelope lodged with the Court pursuant to Order 4 of the Orders made on 13 January 2009 be forthwith returned to the solicitors for the mother (Barkus Doolan Kelly).

12.

Pursuant to s 62B and s 65DA(2), 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 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.

14.

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.

15.

The Independent Children’s Lawyer is discharged upon the expiration of the appeal period.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.