HARTLAND & HARTLAND - [2020] FCCA 937

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARTLAND & HARTLAND

[2020] FCCA 937

Catchwords:
FAMILY LAW – Interim proceedings – parenting arrangements for children aged 7 & 6 – assessment of risk – exposure to family violence – nature of interim hearing – interim intervention order – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA, 68B, 68P,

68Q

Cases cited:

B & B (1993) FLC 92-357

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 92-286

Mazorski v Albright (2007) 37 FamLR 518

Slater & Light [2013] FamCAFC 4

Stevenson v Hughes (1993) FLC 92-363

Applicant:

MR HARTLAND

Respondent:

MS HARTLAND

File Number:

ADC 469 of 2019

Judgment of:

Judge Brown

Hearing date:

20 April 2020

Date of Last Submission:

20 April 2020

Delivered at:

Adelaide

Delivered on:

24 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Tinning

Solicitors for the Applicant:

Boylan Lawyers

Counsel for the Respondent:

Ms Fuda

Solicitors for the Respondent:

Comley Legal

ORDERS

Until further or other order:

The father spend time with the children of the marriage X born in 2012 and Y born in 2013 (‘the children’) each Sunday between the hours of 10.00am and 1.00pm commencing Sunday 26 April 2020.
The time ordered pursuant to order (1) hereof take place at the father’s place of residence A Street, Suburb B.
In order to facilitate each of the first four weekly visits, ordered pursuant to order (1) hereof, the wife’s brother Mr C is to deliver the children to the father’s home at the commencement of the time ordered in the absence of the wife.
At the conclusion of each of the first four visits, detailed in order (3) hereof, the father is to return the children to the mother in the foyer of the Suburb D Police Station.
Thereafter, upon the conclusion of the first four visits, as ordered in orders (3) & (4) hereof the parties are authorised by this order to exchange the children directly between them at a location to be agreed but failing agreement to be at either the front gate/kerb or front door of the father’s home, with the mother to signal her arrival at the property by sounding her horn.
That order (6) of the orders dated 17 May 2019 do continue but subject to the variation that the father is able to be within 50 metres proximity to the mother for the purposes of exchanging the children and spending time with the children pursuant to these orders.
That an injunction be issued restraining the father from having any other person or persons present during the time the children spend with him pursuant to these orders.
The Intervention Order dated 12 February 2019 be varied to the extent that it allows the time spending pursuant to orders (1) to (4) hereof to occur and allows the parties to come within 50 metres of one another for the purpose of facilitating handover.
That a copy of these…

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 HARTLAND & HARTLAND

Details

AGLC: Hartland and Hartland [2020] FCCA 937
Case: [2020] FCCA 937
Decision Date: 24 April 2020

CaseChat Overview and Summary

In the matter of *Hartland & Hartland*, heard by Judge Brown, the dispute concerned interim parenting arrangements for two young children, aged seven and six. The proceedings involved allegations of family violence and the assessment of risk to the children.

The court was required to determine the appropriate interim parenting orders, considering the children's best interests in circumstances where an intervention order was in place. Key issues included the nature of interim hearings in family law, the assessment of risk, and how to balance the children's right to spend time with their father against the need for their protection.

Judge Brown reasoned that while the intervention order reflected a serious concern for the mother's safety, the court's primary focus in interim parenting proceedings was the children's welfare. The court considered the specific allegations of family violence and their potential impact on the children. To facilitate supervised contact, the court ordered that the father spend time with the children each Sunday, with specific handover arrangements involving the mother's brother for the initial visits. The court also varied the existing intervention order to permit these specific contact arrangements and imposed an injunction restraining the father from having other persons present during his time with the children. A family report was ordered to assist in future determinations, and the matter was adjourned for a trial date to be allocated.

Orders

Orders of the court

Until further or other order:

The father spend time with the children of the marriage X born in 2012 and Y born in 2013 (‘the children’) each Sunday between the hours of 10.00am and 1.00pm commencing Sunday 26 April 2020.

The time ordered pursuant to order (1) hereof take place at the father’s place of residence A Street, Suburb B.

In order to facilitate each of the first four weekly visits, ordered pursuant to order (1) hereof, the wife’s brother Mr C is to deliver the children to the father’s home at the commencement of the time ordered in the absence of the wife.

At the conclusion of each of the first four visits, detailed in order (3) hereof, the father is to return the children to the mother in the foyer of the Suburb D Police Station.

Thereafter, upon the conclusion of the first four visits, as ordered in orders (3) & (4) hereof the parties are authorised by this order to exchange the children directly between them at a location to be agreed but failing agreement to be at either the front gate/kerb or front door of the father’s home, with the mother to signal her arrival at the property by sounding her horn.

That order (6) of the orders dated 17 May 2019 do continue but subject to the variation that the father is able to be within 50 metres proximity to the mother for the purposes of exchanging the children and spending time with the children pursuant to these orders.

That an injunction be issued restraining the father from having any other person or persons present during the time the children spend with him pursuant to these orders.

The Intervention Order dated 12 February 2019 be varied to the extent that it allows the time spending pursuant to orders (1) to (4) hereof to occur and allows the parties to come within 50 metres of one another for the purpose of facilitating handover.

That a copy of these reasons be provided to the presiding magistrate in the intervention order proceedings currently before the Adelaide Magistrates Court and to the Chief Commissioner of SAPOL.

10.

A family report be prepared pursuant to section 62G of the Family Law Act 1975 to be released to the parties on or before 30 September 2020.

11.

The matter be called over at 10.30 am on 9 June 2020 to be allocated a trial date unless earlier resolved between the parties.

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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