Hannan and Hannan - [2008] FMCAfam 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HANNAN & HANNAN

[2008] FMCAfam 107

FAMILY LAW – Interim relocation – allegations of unilateral move – agreement to equal shared parental responsibility.

Family Law Act 1975 (Cth), ss.60B, 60CC(2) and (3), 61DA, 65DAA

Applicant:

MR HANNAN

Respondent:

MS HANNAN

File number:

TVC 1371 of 2007

Judgment of:

Coker FM

Hearing date:

29 January 2008

Delivered at:

Townsville

Delivered on:

29 January 2008

REPRESENTATION

Solicitors for the Applicant:

McDonald & Leong

Counsel for the Respondent:

Mr T Betts

Solicitors for the Respondent:

Giudes & Elliott

ORDERS

The parents have equal shared parental responsibility for the major long term issues of the children [S] born in 2000 and [J] born in 2002 including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
If the Mother is residing in Townsville the children live with each parent for a period of one week commencing with the Father at 3:00pm on Friday 1 February 2008 until 3:00pm on Friday 8 February 2008 and to alternate each week thereafter.
If the Mother is not living in Townsville the children live with the Father from 3:00pm Friday 1 February 2008 and the children spend time with the Mother at all reasonable times as may be agreed and in particular each alternate weekend commencing on Friday 8 February 2008 from after school on Friday until before school on Monday.
The children spend one half of all school holiday periods with each of the parents with the Mother to have the first half of such school holiday periods in 2008 and the second half in 2009 and to alternate each year thereafter.
Pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue and warrant issue authorising and directing the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all states and territories of the Commonwealth of Australia to take possession of the children [S] born in 2000 and [J] born in 2002 and to deliver the children to the care of the Applicant Father forthwith.
Such recovery order lie on the Registry file until 3:00pm 1 February 2008 and to be uplifted upon the request by the solicitor for the Applicant Father in writing.
Pursuant to Rule 15.09 of the Federal Magistrates Court Rules, a person to be nominated by the Family Dispute Co-ordinator of the Federal Magistrates Court of Australia be appointed a court expert in…

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 Hannan and Hannan

Details

AGLC: Hannan and Hannan [2008] FMCAfam 107
Case: [2008] FMCAfam 107
Decision Date: 29 January 2008

CaseChat Overview and Summary

The case of Hannan and Hannan involved the parents of two children, [S] born in 2000 and [J] born in 2002. The dispute centred on the allocation of shared parental responsibility, the specific arrangements for the children’s living arrangements, and the timelines for making decisions about major long-term issues. The matter was heard and determined by the Federal Magistrates Court.

The court was required to determine the allocation of shared parental responsibility for the children's major long-term issues and the specific arrangements for the children's living arrangements. The court also had to decide on the process for making decisions in the exercise of shared parental responsibility and the timelines for filing and serving affidavits of evidence in chief and case outlines.

The court ruled that the parents have equal shared parental responsibility for the children's major long-term issues. It established a specific schedule for the children’s living arrangements, depending on whether the mother resides in Townsville or elsewhere. The court mandated that the parents consult with each other and make a genuine effort to come to joint decisions regarding these major issues. Additionally, the court issued a recovery order authorising law enforcement to return the children to the father if they were not already in his care by a specified date. The court also appointed a court expert to report on parenting issues and set out detailed procedural directions for the preparation and conduct of the trial.

The court's final orders included the equal allocation of shared parental responsibility, specific living arrangements for the children, and detailed procedural directions for the trial. These orders were designed to ensure that the children's best interests were prioritised while providing a clear framework for the parents to follow in their co-parenting responsibilities.

Orders

Orders of the court

The parents have equal shared parental responsibility for the major long term issues of the children [S] born in 2000 and [J] born in 2002 including but not limited to:

(a) a child’s education (both current and future);

(b) a child’s religious and cultural upbringing;

(d) a child’s name;

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree;

If the Mother is residing in Townsville the children live with each parent for a period of one week commencing with the Father at 3:00pm on Friday 1 February 2008 until 3:00pm on Friday 8 February 2008 and to alternate each week thereafter.

If the Mother is not living in Townsville the children live with the Father from 3:00pm Friday 1 February 2008 and the children spend time with the Mother at all reasonable times as may be agreed and in particular each alternate weekend commencing on Friday 8 February 2008 from after school on Friday until before school on Monday.

The children spend one half of all school holiday periods with each of the parents with the Mother to have the first half of such school holiday periods in 2008 and the second half in 2009 and to alternate each year thereafter.

Pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue and warrant issue authorising and directing the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all states and territories of the Commonwealth of Australia to take possession of the children [S] born in 2000 and [J] born in 2002 and to deliver the children to the care of the Applicant Father forthwith.

Such recovery order lie on the Registry file until 3:00pm 1 February 2008 and to be uplifted upon the request by the solicitor for the Applicant Father in writing.

Pursuant to Rule 15.09 of the Federal Magistrates Court Rules, a person to be nominated by the Family Dispute Co-ordinator of the Federal Magistrates Court of Australia be appointed a court expert in this matter to inquire into and report on parenting issues in relation to the said children and that:

(a) the parties co-operate with the report writer and make themselves and the children available for interview and observation;

(b) the court shall be responsible for the costs of the report.

IT IS FURTHER DIRECTED THAT:

The Applicant file and serve any affidavits of evidence in chief to be relied upon no less than 28 days prior to the date set for trial.

10.

The Respondent file and serve any affidavits of evidence in chief to be relied upon no less than 18 days prior to the date set for trial.

11.

No party has leave to rely upon any material filed outside the time provided within these directions other than with leave of the Court.

12.

The applicant pay the hearing fee or file an application to waiver the hearing fee no less than 7 days prior to the date set for trial.

13.

Each party file and serve on each other party 3 days prior to the date set for hearing, a case outline setting out:

(a) the final orders sought;

(b) a chronology;

(d) statement of evidence which they say supports the principles contained in section 60CC

14.

The application be listed for a compliance check on a date to be fixed in Townsville.

15.

The application be listed for 2 days hearing on a date to be fixed in Townsville.

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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