HARLE & NORCOTT - [2018] FCCA 2551

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARLE & NORCOTT

[2018] FCCA 2551

Catchwords:
FAMILY LAW – Interim parenting – where mother and Independent Children’s Lawyer consented to orders – where father opposes orders in relation to his time with the children.

Legislation:

Family Law Act 1975 (Cth), s.65DA(2)

Applicant:

MS HARLE

Respondent:

MR NORCOTT

File Number:

WOC 276 of 2018

Judgment of:

Judge Altobelli

Hearing date:

10 August 2018

Date of Last Submission:

10 August 2018

Delivered at:

Wollongong

Delivered on:

10 August 2018

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

Orders be made in accordance with the document entitled ‘Short Minutes of Orders’ marked “A” dated this day 10 August 2018 and attached hereto.
Pursuant to section 65DA(2) 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.
The proceedings be adjourned to 5 October 2018 at 9:30am for Mention via Genesis Teleconference:
(a)Dial the Teleconference Access number –;
(b)At the prompt, enter the passcode: (please ensure you enter the # key after the numbers)

THE COURT NOTES THAT:

A.In relation to Order 1, the Order is made by consent as between the Independent Children’s Lawyer and the Applicant Mother, but in relation to the Father is it an Order the Court makes.
B.The purpose of the adjourned date is to review the progress of the Father’s time spent with the children.

IT IS NOTED that publication of this judgment under the pseudonym Harle & Norcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Family Law Act, 1975.

In the Federal Circuit Court of Australia

at Wollongong No. WOC276 of 2018

Between

Ms HARLE
Applicant

And

Mr NORCOTT
Respondent

And

The Independent Children’s Lawyer

SHORT MINUTES OF ORDERS.

THE PARENTS CONSENT TO THE FOLLOWING ORDERS:-

Orders for Parental Responsibility.

1.That the Mother and the Father are to have equal shared parental responsibility for the children:
[W] Born on 2007
        [X] Born on 2009
        [Y] Born on 2011
        [Z] born on 2013

in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:-

(a)the education of the children – both current and future;
(b)the religion of the children;
(c)the health of the children;
(d)any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.

2.That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family…

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 HARLE & NORCOTT

Details

AGLC: Harle and Norcott [2018] FCCA 2551
Case: [2018] FCCA 2551
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the matter of *Harle & Norcott*, heard before Judge Altobelli, the dispute concerned interim parenting arrangements for the children. The Independent Children’s Lawyer and the Applicant Mother had consented to certain orders, but the Father opposed the orders specifically in relation to his time with the children.

The central legal issue before the Court was whether to make the proposed interim parenting orders, notwithstanding the Father's opposition, given the consent of the Independent Children’s Lawyer and the Applicant Mother. The Court was required to consider the implications of making such orders and the basis upon which they could be imposed on a party who did not consent.

Judge Altobelli reasoned that while the orders were made by consent as between the Independent Children’s Lawyer and the Applicant Mother, they were being made by the Court in relation to the Father. The Court noted that the purpose of the adjourned date was to review the progress of the Father’s time spent with the children, indicating an intention to monitor the arrangements. The Court made orders in accordance with the 'Short Minutes of Orders' and included particulars of obligations and consequences of contravention pursuant to section 65DA(2) of the *Family Law Act 1975*. The proceedings were adjourned for a mention to review progress.

Orders

Orders of the court

Orders be made in accordance with the document entitled ‘Short Minutes of Orders’ marked “A” dated this day 10 August 2018 and attached hereto.

Pursuant to section 65DA(2) 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.

The proceedings be adjourned to 5 October 2018 at 9:30am for Mention via Genesis Teleconference:

(a) Dial the Teleconference Access number –;

(b) At the prompt, enter the passcode: (please ensure you enter the # key after the numbers)

THE COURT NOTES THAT:

A. In relation to Order 1, the Order is made by consent as between the Independent Children’s Lawyer and the Applicant Mother, but in relation to the Father is it an Order the Court makes.

B. The purpose of the adjourned date is to review the progress of the Father’s time spent with the children.

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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