Hanley and Hanley - [2014] FCCA 293

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANLEY & HANLEY

[2014] FCCA 293

Catchwords:
FAMILY LAW – Parenting – interim arrangements – change of routine – asperger’s syndrome.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 10B, 10F, 13C, 60B, 60CA, 60CC, 60I, 61C, 61DA, 62G 69ZT, 68L, 60B, 62G, 63DA, 64B, 65DAA, 65F, 67ZBB, 68B, 69ZV, 69ZW, 114
Evidence Act 1995 (Cth), s.144
Universal Declaration of Human Rights
International Conventions on the Rights of the Child
Crimes Act 1900 (NSW), s.61AA
Federal Circuit Court of Australia Act 1999 (Cth)

Makita & Sprowles (2001) 52 NSWLR 705
Cowling [1998] FamCA 19
Griffiths (1981) FLC 91-064
Cilento (1980) FLC 90-847
Rainer & Rainer (1982) FLC 91-239
Harrison & Woollard (1995) FLC 92-598
Re R Children’s Wishes [2000] FamCA 43
Johnson & Page [2007] FamCA 1235
Mazorski & Albright [2007] FamCA 520
Deacon & Castle [2013] FCCA 691
Goode & Goode (2006) FLC 93-286
MRR & GR [2010] HCA 4

Applicant:

MR HANLEY

Respondent:

MS HANLEY

File Number:

PAC 1783 of 2013

Judgment of:

Judge Harman

Hearing date:

7 February 2014

Date of Last Submission:

7 February 2014

Delivered at:

Albury

Delivered on:

25 February 2014

REPRESENTATION

Solicitors for the Applicant:

Ian Harper & Co

Solicitors for the Respondent:

Claremont Legal

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Penrith

ORDERS

All prior interim Orders with respect to the children, [X] and [Y], each born [in] 2008 are discharged.
Pursuant to section 61C of the Family Law Act1975 the parents, Mr Hanley and Ms Hanley, shall each have parental responsibility for [X] and [Y] at such times as they are in their respective care.
[X] and [Y] shall spend time with their mother Ms Hanley at all times other than when they are spending time with their father.
[X] and [Y] shall spend time with their father, Mr Hanley:
(a)Each alternate weekend during school terms from the conclusion of school Thursday until 5pm Sunday, first such period to commence the Friday immediately following the making of these Orders and to resume on the first weekend of each fresh school term;
(b)Each alternate week during school terms from after school Thursday until the commencement of school the next day (Friday) in each intervening week, first such period to commence the Thursday immediately following the first period of weekend time above;
(c)For the first half of each short New South Wales school holiday period, as agreed between the parents or, failing agreement, from 10am on the first Saturday of the school holiday period until 5pm on the middle Sunday of the school holiday period;
(d)Such further and/or other periods of time as agreed between the parents from time to time.
Each parent shall be entitled to telephone and speak with [X] and [Y] on each day that the children are not, or have not been, in their care, and between 6.30pm and 7.30pm, and with respect to same:
(a)The parent wishing to speak with the children shall telephone the other parent’s mobile telephone;
(b)Each parent…

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 Hanley and Hanley

Details

AGLC: Hanley and Hanley [2014] FCCA 293
Case: [2014] FCCA 293
Decision Date: 25 February 2014

CaseChat Overview and Summary

This matter concerned proceedings between Mr Hanley and Ms Hanley regarding the parental responsibility and time spent with their two children, [X] and [Y]. The decision was made by Judge Harman.

The court was required to determine the orders concerning parental responsibility, the time the children would spend with each parent, and provisions for communication, medical information, and school contact. Additionally, the court addressed the filing and service of evidence for an upcoming trial and the process for listing the matter for hearing.

Judge Harman ordered that prior interim orders concerning the children be discharged. Parental responsibility was to be shared by both parents, with the children spending time with Ms Hanley at all times other than when they were with Mr Hanley. Specific arrangements were detailed for Mr Hanley's time with the children, including alternate weekends and intervening weekdays during school terms, and a division of school holiday periods. The orders also stipulated communication rights, the exchange of medical and educational information, and the process for collecting the children. The court also set strict timelines for the filing and service of evidence by both parties and outlined the procedure for listing the matter for trial, including provisions for administrative vacation of a call-over date if the matter was certified as ready for hearing.

Orders

Orders of the court

All prior interim Orders with respect to the children, [X] and [Y], each born [in] 2008 are discharged.

Pursuant to section 61C of the Family Law Act 1975 the parents, Mr Hanley and Ms Hanley, shall each have parental responsibility for [X] and [Y] at such times as they are in their respective care.

[X] and [Y] shall spend time with their mother Ms Hanley at all times other than when they are spending time with their father.

[X] and [Y] shall spend time with their father, Mr Hanley:

(a) Each alternate weekend during school terms from the conclusion of school Thursday until 5pm Sunday, first such period to commence the Friday immediately following the making of these Orders and to resume on the first weekend of each fresh school term;

(b) Each alternate week during school terms from after school Thursday until the commencement of school the next day (Friday) in each intervening week, first such period to commence the Thursday immediately following the first period of weekend time above;

(c) For the first half of each short New South Wales school holiday period, as agreed between the parents or, failing agreement, from 10am on the first Saturday of the school holiday period until 5pm on the middle Sunday of the school holiday period;

(d) Such further and/or other periods of time as agreed between the parents from time to time.

Each parent shall be entitled to telephone and speak with [X] and [Y] on each day that the children are not, or have not been, in their care, and between 6.30pm and 7.30pm, and with respect to same:

(a) The parent wishing to speak with the children shall telephone the other parent’s mobile telephone;

(b) Each parent shall ensure that their mobile phone is switched on, charged, in a mobile service area and in credit at those times;

(c) Each parent shall provide such assistance to [X] and/or [Y] as is required to allow them to answer the telephone, but shall otherwise allow them to speak with privacy and without distraction or interruption.

Each parent shall be, and is, hereby restrained from discussing with the children these proceedings or any issue or allegation raised herein, and each parent shall do all things within their power to ensure that no other person does so, save for any report writer commissioned to produce evidence in the proceedings, the Independent Children’s Lawyer, any counsellor agreed by the parents or any doctor or other treating specialist dealing with the children, or any Police Officer or child welfare worker undertaking their duties.

Each parent shall forthwith, and contemporaneous with the event, advise the other of any medical emergency or significant illness experienced by the children or either of them, including sufficient information, consents and authorities to enable each party to speak with any treating doctor, to obtain information regarding the children’s health, prognosis and treatment, and to visit the children if hospitalised.

Each parent shall forthwith, and if they have not already done so, do all things, sign all documents, give all consents and authorities necessary to enable each parent’s details to be recorded with any school or after‑school or vacation care service attended by the children, as both parent and emergency contact person, such as to ensure that each parent can obtain directly from such school or service such information reports (whether written or oral) or other information as they may desire from time to time.

Each parent shall forthwith upon being advised of any specialist medical appointment for the children:

a) Advise the other parent of same in writing (by text message or email);

b) Do all things, sign all documents and give all consents and authorities necessary to enable each parent to attend such appointment or a subsequent separate appointment and to ensure that each parent is fully appraised regarding the children’s health, treatment and prognosis and anything required of them as a parent with respect to same.

10.

For the purposes of the children coming into the care of the mother, the mother shall collect the children from their school, if a school day, and in the event that it is not a school day or either child has not attended school then from the home of the father.

11.

For the purposes of the children coming into the care of the father, the father shall collect the children from their school, if a school day, and in the event that it is not a school day or either child has not attended school then from the home of the mother.

12.

The Applicant shall file and serve all material, upon which he intends to rely at trial no later than close of business 6 June 2014.

13.

The Respondent shall file and serve all affidavit material upon she intends to rely at trial no later than close of business 18 July 2014.

14.

The Applicant, should he consider it necessary or appropriate, shall file an affidavit by him and only him answering any material in reply to the respondent’s affidavits which has not already been addressed in his evidence-in-chief same to be filed no later than close of business on 8 August 2014 and in the event that that evidence is to be called in reply it shall be by filing such affidavit and not otherwise.

15.

The proceedings be listed for call over 9:30am 28 August 2014.

16.

In the event that the parties and the Independent Children’s Lawyer certify in writing that all documents required to be filed as above have, in fact been filed and that the matter is ready to proceed to hearing for an agreed length of trial not exceeding 4 days then:

(a) The call over date 28 August, 2014 will be administratively vacated; and,

(b) Trial dates will be allocated to the matter.

17.

Otherwise dismiss all outstanding interim applications and remove all interim issues from the list of cases awaiting hearing.

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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