Harries and Canon - [2011] FMCAfam 26

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRIES & CANON

[2011] FMCAfam 26

FAMILY LAW – Parenting – the time the children should spend with their father – the children’s relationship with each of their parents – issues relating to the father’s abuse of alcohol and emotional health – the mother’s willingness for the children to have a meaningful relationship with their father.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR & GR [2010] HCA 4
Oscar & Traynor [2008] FamCAFC 158
Runcorn & Raine [2008] FamCA1021
Slater & Light [2011] FamCAFC 1

Applicant:

MS HARRIES

Respondent:

MR CANON

File Number:

BRC 670 of 2009

Judgment of:

Walker FM

Hearing dates:

16 & 17 August 2010 & 8 November 2010

Date of Last Submission:

8 November 2010

Delivered at:

Sydney

Delivered on:

24 February 2011

REPRESENTATION

Counsel for the Applicant:

Ms Messner

Solicitors for the Applicant:

John R Quinn & Co

Counsel for the Respondent:

Self represented

Solicitors for the Respondent:

Self represented

THE COURT ORDERS THAT:

The children [X] born [in] 2003 and [Y] born [in] 2005 are to live with their mother.
The parents are to have equal shared parental responsibility for the children subject to Order 3 below.
The mother is to consult the father in writing in relation to any long term decision affecting the children, or either of them, and in the event that the father does not respond to the mother within twenty-eight (28) days, she is entitled to solely make that decision. If the father does respond to the mother within twenty-eight (28) days and the parents are unable to agree, they are to:
(a)Make arrangements to attend mediation about the issue; and
(b)If mediation cannot take place because of a decision of a particular agency, or if mediation is unsuccessful, the mother is to make the final decision.
The father is to spend time with the children as follows, unless otherwise agreed:
(a)Each alternate weekend from 9.00 am Saturday to 6.00 pm Saturday and from 9.00 am Sunday to 6.00 pm Sunday commencing on the first Saturday following the making of these orders.
(b)Provided that the father has spent time with the children on four weekends, as provided for in Order 4(a) above, over a period of two months, the father’s time with the children is to be extended so that it commences at 9.00 am on Saturday and concludes at 6.00 pm on Sunday, upon the father providing the following information to the mother:
(i)details of the psychologist or psychiatrist with whom he is consulting in relation to the issues of alcohol abuse and mental health referred to by Dr M in his two reports; and
(ii)written confirmation from the psychologist or psychiatrist that the father is engaged in a program of counselling, or therapy with him/her, and that the father’s alcohol intake is being monitored.
(iii)any such extension of the father’s time as provided for in this order, is to commence on the next…

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 Harries and Canon

Details

AGLC: Harries and Canon [2011] FMCAfam 26
Case: [2011] FMCAfam 26
Decision Date: 24 February 2011

CaseChat Overview and Summary

In the matter of Harries and Canon, the court was presented with a dispute concerning the custody and care of two minor children, [X] born in 2003 and [Y] born in 2005. The court was tasked with determining the living arrangements, parental responsibility, and visitation rights for the children. The case was heard and determined by the Federal Magistrates Court of Australia.

The primary legal issues the court needed to resolve included determining the primary residence of the children, establishing the extent of parental responsibility each parent would hold, and setting visitation arrangements that would ensure the children's welfare and stability. Additionally, the court had to consider the father's history of alcohol abuse and mental health issues, as well as the parents' ability to cooperate and communicate regarding the children's upbringing.

In its decision, the court concluded that the children would live with their mother but would have substantial and significant time with their father, subject to certain conditions. The court granted equal shared parental responsibility to both parents but stipulated that the mother would have the final say in long-term decisions if the father did not respond within 28 days or if mediation failed. Visitation was set to alternate weekends and extended holidays, contingent on the father's engagement in a mental health program and monitoring of his alcohol intake. The court also imposed restrictions on the removal of the children from Australia and required the parents to maintain communication regarding their contact details and any changes in residence.

In summary, the court ordered that the children would reside with their mother but spend significant time with their father, subject to specific conditions. The parents were granted equal shared parental responsibility, and the mother was given the authority to make final decisions in certain circumstances. Visitation schedules were detailed, and both parents were required to cooperate in various aspects of the children's welfare and communication.

Orders

Orders of the court

The children [X] born [in] 2003 and [Y] born [in] 2005 are to live with their mother.

The parents are to have equal shared parental responsibility for the children subject to Order 3 below.

The mother is to consult the father in writing in relation to any long term decision affecting the children, or either of them, and in the event that the father does not respond to the mother within twenty-eight (28) days, she is entitled to solely make that decision. If the father does respond to the mother within twenty-eight (28) days and the parents are unable to agree, they are to:

(a) Make arrangements to attend mediation about the issue; and

(b) If mediation cannot take place because of a decision of a particular agency, or if mediation is unsuccessful, the mother is to make the final decision.

The father is to spend time with the children as follows, unless otherwise agreed:

(a) Each alternate weekend from 9.00 am Saturday to 6.00 pm Saturday and from 9.00 am Sunday to 6.00 pm Sunday commencing on the first Saturday following the making of these orders.

(b) Provided that the father has spent time with the children on four weekends, as provided for in Order 4(a) above, over a period of two months, the father’s time with the children is to be extended so that it commences at 9.00 am on Saturday and concludes at 6.00 pm on Sunday, upon the father providing the following information to the mother:

(i) details of the psychologist or psychiatrist with whom he is consulting in relation to the issues of alcohol abuse and mental health referred to by Dr M in his two reports; and

(ii) written confirmation from the psychologist or psychiatrist that the father is engaged in a program of counselling, or therapy with him/her, and that the father’s alcohol intake is being monitored.

(iii) any such extension of the father’s time as provided for in this order, is to commence on the next weekend when the children will be spending time with their father pursuant to Order 4(a) above.`

(c) The father’s time with the children pursuant to Orders 4(a) and 4(b) is to be suspended on up to three (3) occasions each year should the mother give the father four (4) weeks written notice that she intends to be away from [C] to spend a period of holiday time with the children.

(d) The mother is to make the children available to spend time with the father equivalent to that which they would have spent except for the operation of Order 4(c) above, if the father within a week of receiving notice pursuant to Order 4(c), provides the mother with written notice of days and times on which he would be able to spend equivalent time with the children on another occasion.

(e) No later than two (2) years following the date of these orders, provided the father has been spending regular time with the children in accordance with these orders, the parents are each to take the steps necessary to engage in mediation relating particularly to an extension of the father’s time with the children and any proposal of either of the parents to travel overseas with the children.

On Special days, unless otherwise agreed:

(a) The children are to spend time with their father on each Father’s Day from 9.00 am to 6.00 pm if they would not otherwise be spending time with him on that day.

(b) The children are to spend time with their mother on Mother’s Day from 9.00 am to 6.00pm if they would not otherwise be with her on that day.

(c) The children are to spend at least two (2) hours on each of their birthdays with the parent with whom they would not otherwise be living, or spending time with, on such days.

(d) If the children have commenced spending overnight time with their father, they are to spend time with him each year from 12.00 noon on Christmas Day to 12.00 noon on Boxing Day. In the event the children have not commenced spending overnight time with their father they are to spend time with him each year on Christmas Day from 2.00 pm to 7.00 pm.

For a period of two (2) years from the date of these orders the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the children [X] born [in] 2003 (male) and [Y] born [in] 2005 (male) from the Commonwealth of Australia for a period of two years from the date of these orders. The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said children from the Commonwealth of Australia.

For a period of two (2) years from the date of these orders the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s, [X] born [in] 2003 (male) and [Y] born [in] 2005 (male), names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

If the father proposes to travel overseas he is to provide the mother with notice of his intention prior to his departure, and is to advise the mother of his proposed return date.

While the father continues to spend time with the children in accordance with these orders, excluding his inability to spend time with the children for a period when he is travelling overseas and has given the mother notice in accordance with Order 8 above, the mother is restrained from moving the residence of the children from [C] without the written consent of the father or an order of the Court.

10.

Each of the parents is to keep the other advised of details of their residential address, and landline and mobile telephone numbers.

11.

Each of the parents is to give the other twenty-eight (28) days notice of any proposed change of residential address.

12.

That pursuant to s.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 the Fact Sheet, attached hereto and these particulars are included in these orders.

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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