Hansford and Phillips (No.3) - [2019] FCCA 912

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSFORD & PHILLIPS (No.3)

[2019] FCCA 912

Catchwords:
FAMILY LAW – Parenting – prolonged litigation – equal time arrangement – the rule in Rice & Asplund – best interests of the child – wishes of the child – child inclusive conference.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1978) 6 Fam LR 570

Applicant:

MS HANSFORD

Respondent:

MR PHILLIPS

File Number:

ADC 4008 of 2013

Judgment of:

Judge Young

Hearing date:

28 February 2019

Date of Last Submission:

28 February 2019

Delivered at:

Adelaide

Delivered on:

28 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms O’Connor SC

Solicitors for the Applicant:

D’Angelo Kavanagh

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Jacqui Ion Lawyers Pty Ltd

ORDERS

Until further order the children [X] born … 2004 and [Y] born … 2007 spend time with the father as follows:
(a)during school terms each alternate weekend from the conclusion of school Friday until the commencement of school Monday, commencing the weekends of 8 March, 22 March, 5 April and 10 May 2019;
(b)during the April school holidays from 5.00pm Friday 19 April until the commencement of school Monday 29 April 2019.
That pursuant to section 11F of the Family Law Act 1975 (as amended) the parties and the children [X] and [Y] attend a non-privileged dispute resolution appointment provided by the Child Dispute Services of the family law courts on 16 April 2019 at 9.30am, with the parties to telephone the Registry on 1300 352 000 to confirm their attendance.
That following thereon the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.
The proceedings are adjourned to 21 May 2019 at 11.30am (allowing one hour) with respect to the following:
(a)the mother’s Initiating Application filed 21 February 2019 noting the parties to be in a position to make Rice & Asplund type submissions on that date;
(b)the mother’s Application in a Case filed 25 February 2019 seeking a variation to child support; and
(c)the father’s Application in a Case filed 27 February 2019 seeking a Hadkinson Order.

IT IS NOTED that publication of this judgment under the pseudonym Hansford & Phillips (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4008 of 2013

MS HANSFORD

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a long-running and bitter parenting dispute between two parents who regrettably are unable to parent in a way that fosters the best interests of their children. There was a six-day trial held in 2015 and orders were made for shared care and equal time,…

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.

Keep reading for free

Create a free CaseChat account to read Hansford and Phillips (No.3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 912
Decision Date: 28 February 2019

CaseChat Overview and Summary

In *Hansford and Phillips (No.3)*, Judge Young of the Family Court of Australia considered interim parenting arrangements and procedural matters concerning the children [X] and [Y]. The dispute involved the father's application for time with the children and the mother's applications relating to child support and variations to existing orders, as well as the father's application for a *Hadkinson* order.

The court was required to determine the interim parenting arrangements for the children, specifically the father's time with them during school terms and holidays. Additionally, the court needed to address the attendance of the parties and children at a dispute resolution appointment, the role of a Family Consultant in providing advice to the court, and the further conduct of proceedings concerning the mother's applications and the father's *Hadkinson* application.

Judge Young made interim orders for the father to spend time with the children on alternate weekends during school terms and for a specific period during the April school holidays. The court also ordered the parties and children to attend a non-privileged dispute resolution appointment with Child Dispute Services. Following this, a Family Consultant was directed to provide brief advice to the court on agreed and disputed issues and to make recommendations for interim or procedural orders. The proceedings were adjourned to a later date to address the mother's initiating application and application in a case concerning child support, and the father's application for a *Hadkinson* order, with parties to be in a position to make *Rice & Asplund* type submissions.

Orders

Orders of the court

Until further order the children [X] born … 2004 and [Y] born … 2007 spend time with the father as follows:

(a) during school terms each alternate weekend from the conclusion of school Friday until the commencement of school Monday, commencing the weekends of 8 March, 22 March, 5 April and 10 May 2019;

(b) during the April school holidays from 5.00pm Friday 19 April until the commencement of school Monday 29 April 2019.

That pursuant to section 11F of the Family Law Act 1975 (as amended) the parties and the children [X] and [Y] attend a non-privileged dispute resolution appointment provided by the Child Dispute Services of the family law courts on 16 April 2019 at 9.30am, with the parties to telephone the Registry on 1300 352 000 to confirm their attendance.

That following thereon the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

The proceedings are adjourned to 21 May 2019 at 11.30am (allowing one hour) with respect to the following:

(a) the mother’s Initiating Application filed 21 February 2019 noting the parties to be in a position to make Rice & Asplund type submissions on that date;

(b) the mother’s Application in a Case filed 25 February 2019 seeking a variation to child support; and

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.