Hansom & Toth - [2023] FedCFamC2F 920

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hansom & Toth [2023] FedCFamC2F 920

File number(s): PAC 5395 of 2019

Judgment of: JUDGE STREET

Date of judgment: 27 July 2023

Catchwords: FAMILY LAW – PARENTING – undefended hearing - presumption of equal shared parental responsibility rebutted – where the child is to live with the paternal grandmother

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
A v A (1998) FLC 92-800

A & Z [2006] FamCA 179

Cotton & Cotton (1983) FLC 91-330

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fitzwater & Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Goode v Goode [2006] FamCA136

Isles & Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Lanceley & Lanceley [1994] FamCA 94

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Masson v Parsons (2019) 266 CLR 554

McCall & Clark (2009) FLC 93-405

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Stott & Holgar [2017] FamCAFC 152

Zane & Allen [2008] FamCAFC 115

Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.

Division: Division 2 Family Law

Number of paragraphs: 54

Date of hearing: 24 April 2023

Place: Sydney

Applicant: No appearance

Solicitor for the First Respondent: Pinnacle Lawyers

Counsel for the Second Respondent: Ms C Ingenito

Solicitor for the Second Respondent: Savage Solicitors

Counsel for the Independent Children’s Lawyer: Ms K Conte-Mills

Independent Children’s Lawyer: John Spence & Associates
ORDERS

PAC 5395 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HANSOM

Applicant

AND:
MR TOTH

First Respondent

MS TOTH

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE STREET

DATE OF ORDER:

24 April 2023

THE COURT ORDERS THAT:
1.The matter proceed as an undefended hearing.
2.Any earlier parenting orders are vacated.

Parental Responsibility
3.That the paternal grandmother have sole parental responsibility for all major long term issues for X, born in 2018 (the child) including;
(a)Religion
(b)Health (including Medical and dental treatment)
(c)Schooling
(d)Culture
(e)Where the children live (if it makes it more difficult to spend time with the parents)

4.In making any decision about Major Long-Term Issues about the children, the grandmother will:
(a)Inform the parents in writing 14 days prior to any decision regarding major long-term issues, detailing the decision to be made, their suggestions and reason for that suggestion.
(b)The parents will advise the paternal grandmother, in writing, within 7 days of receiving the grandmother’s letter as above, of their decision regarding the major long-term decision and their reasons for same and any failure to respond to such communication…

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 Hansom & Toth

Details

AGLC: Hansom & Toth [2023] FedCFamC2F 920
Case: [2023] FedCFamC2F 920
Decision Date

CaseChat Overview and Summary

These proceedings concern the care, welfare and development of X, born in 2018, who is currently aged five. The applicant mother has failed to appear, and the proceedings have proceeded as an undefended hearing. The first respondent father has appeared on behalf of the child and the second respondent, the paternal grandmother, has appeared on behalf of herself. The Independent Children’s Lawyer also appeared on behalf of the child. The Court made orders for the child to live with the paternal grandmother and spend time with the parents on a set schedule. The Court also made orders in relation to the exercise of parental responsibility, medical decisions, contact details, communication, travel, passports and the mother’s participation in a parenting program. The Court found that the presumption of equal shared parental responsibility was displaced as it was likely to result in increased tension between the parents and expose the child to ongoing conflict, which posed an unacceptable risk of longer term emotional damage to the child from such conflict. The Court found there was no establishing function or communication between the parents and that the paternal grandmother offered the child a stable and loving environment. The Court found that the paternal grandmother had been a protective figure in the child’s life and had stepped in, in recognition of the issues faced by the mother and the father. The Court found that the orders proposed by the paternal grandmother were in the best interests of the child.

Orders