Hanslow and Hanslow - [2018] FCCA 1923

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSLOW & HANSLOW

[2018] FCCA 1923

Catchwords:
FAMILY LAW – Parenting – interim parenting orders – where there are concerns about the Respondent’s mental health – where the final hearing adjourned to allow for psychiatric evaluation of the Respondent – interim care and schooling arrangements for ten year old special needs child.

Cases cited:

Re G: Children’s Schooling (2000) 155 FLR 459

Applicant:

MS HANSLOW

Respondent:

MS HANSLOW

File Number:

MLC 8578 of 2010

Judgment of:

Judge Kirton

Hearing dates:

12 and 13 June 2018

Date of Last Submission:

13 June 2018

Delivered at:

Melbourne

Delivered on:

13 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Conlan

Solicitors for the Applicant:

Blackwood Family Lawyers

Counsel for the Respondent:

Ms Jardine

Solicitors for the Respondent:

Pentana Stanton Lawyers

Counsel for the Independent Children's Lawyer:

Mr Lovering

Solicitors for the Independent Children's Lawyer:

Clark Family Lawyers

ORDERS

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

The Applicant shall have sole parental responsibility for the child of the relationship, [X] born 2008 (“[X]”) in relation to all major long term issues including [X]’s health and education.
In relation to any decision the Applicant is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long term welfare of [X], the Applicant is to undertake the following actions before making such decision:
(a)The Applicant is to provide the Respondent with no less than 14 days notice in writing of any such proposed decision;
(b)The Applicant is to consult with the Respondent (by email or text communication unless she elects to communicate by phone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to the Respondent’s expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the Respondent about any such proposed decision; and
(c)In the event that no agreement is reached between the Applicant and the Respondent, the Applicant shall make the final decision and within 14 days of doing so, provide the Respondent with written confirmation of the decision (by email or text is sufficient).
The interim parenting orders of 10 August 2017 and 24 April 2018 otherwise remain in full force and effect.
The Respondent attend upon a psychiatrist as nominated and directed by the Independent Children’s Lawyer for an independent psychiatric assessment and report (“the psychiatrist”) AND IT IS REQUESTED that Victoria Legal Aid provide a grant of legal assistance to the Respondent for this purpose.
The Independent Children’s Lawyer provide to the Applicant the contact details of the psychiatrist within 7 days of the attendance being booked.
The Applicant, the Respondent and the Independent Children’s Lawyer be at liberty to provide the psychiatrist with the following documents:
(a)Any affidavits and orders filed in these proceedings;
(b)s.11F Child Inclusive Conference report of Family Consultant Ms L dated 25 July 2018;
(c)Family Report of Family Consultant Ms C dated April 2018;
(d)Judgment…

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 Hanslow and Hanslow

Details

AGLC: Hanslow and Hanslow [2018] FCCA 1923
Case: [2018] FCCA 1923
Decision Date: 13 June 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Kirton made orders concerning the parental responsibility and welfare of a child, [X], born in 2008. The proceedings involved the Applicant and the Respondent, who are the parents of [X]. The dispute centred on decisions regarding [X]'s upbringing, including their education, health, and long-term welfare.

The court was required to determine the extent of each parent's responsibility for making decisions about [X]'s major long-term issues. Specifically, the court needed to establish a framework for how decisions would be made, particularly when the parents could not agree. The court also considered the need for a psychiatric assessment of the Respondent and the immediate transition of [X] to a new school.

Judge Kirton ordered that the Applicant have sole parental responsibility for [X] in relation to all major long-term issues, including health and education. However, before making any significant decisions in these areas, the Applicant must provide the Respondent with at least 14 days' written notice and genuinely consult with the Respondent, making a genuine effort to consider their views and reach agreement. If agreement could not be reached, the Applicant would make the final decision and provide written confirmation to the Respondent. The court also ordered the Respondent to attend a psychiatric assessment and requested legal aid for this purpose. Furthermore, the court ordered the immediate commencement of [X]'s transition to a new school, with enrollment to occur by the start of the 2019 school year, and for [X] to attend that school or another nominated by the Applicant thereafter. The matter was adjourned for a final hearing.

Orders

Orders of the court

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

The Applicant shall have sole parental responsibility for the child of the relationship, [X] born 2008 (“[X]”) in relation to all major long term issues including [X]’s health and education.

In relation to any decision the Applicant is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long term welfare of [X], the Applicant is to undertake the following actions before making such decision:

(a) The Applicant is to provide the Respondent with no less than 14 days notice in writing of any such proposed decision;

(b) The Applicant is to consult with the Respondent (by email or text communication unless she elects to communicate by phone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to the Respondent’s expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the Respondent about any such proposed decision; and

(c) In the event that no agreement is reached between the Applicant and the Respondent, the Applicant shall make the final decision and within 14 days of doing so, provide the Respondent with written confirmation of the decision (by email or text is sufficient).

The interim parenting orders of 10 August 2017 and 24 April 2018 otherwise remain in full force and effect.

The Respondent attend upon a psychiatrist as nominated and directed by the Independent Children’s Lawyer for an independent psychiatric assessment and report (“the psychiatrist”) AND IT IS REQUESTED that Victoria Legal Aid provide a grant of legal assistance to the Respondent for this purpose.

The Independent Children’s Lawyer provide to the Applicant the contact details of the psychiatrist within 7 days of the attendance being booked.

The Applicant, the Respondent and the Independent Children’s Lawyer be at liberty to provide the psychiatrist with the following documents:

(a) Any affidavits and orders filed in these proceedings;

(b) s.11F Child Inclusive Conference report of Family Consultant Ms L dated 25 July 2018;

(d) Judgment of Magistrate Bowles dated 16 September 2016, including Family Preservation Order with conditions;

(e) Children’s Court Clinic Report by Dr C dated August 2016;

(f) Report of Clinical Associate Dr J dated 23 March 2016; and

(g) Department of Health and Human Services Final Case Plan Document March 17.

The psychiatrist be at liberty to inspect any subpoenaed documents released to the parties in this matter.

The Applicant and the Respondent do all acts and things necessary to immediately commence [X]’s transition from School B to School A with [X] to be enrolled and commence full-time at School A Primary School by the commencement of the school year in 2019.

The parties do all such acts and things to ensure that [X] attend School A, or such other High School within 5 kilometres of the Applicant’s home as nominated by the Applicant after consultation with the Respondent, from the commencement of high school until [X] graduates high school.

10.

The parties be permitted to provide a copy of these orders to [X]’s school and any professional engaged by the parties.

11.

The matter be adjourned to the Federal Circuit Court of Australia on 28 February 2019 at 10.00 am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

12.

In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them shall pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012 (Cth), that time being no later than 28 days prior to the final hearing.

13.

The Applicant’s and the Independent Children’s Lawyer costs of 12 and 13 June 2018 are reserved.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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.