FAMILY COURT OF AUSTRALIA
| HAYES & HAYES | [2020] FamCA 1057 |
| FAMILY LAW – Parenting – where the parties agreed during final hearing for the mother to have sole parental responsibility and for the children to live with her – where the children have history of unhealthy alignment with the father – where the children presently reside with the mother – where the father accepted that the children should continue to live with the mother – where the mother contends that the father should have only supervised time with the children until they turn 18 – where there are significant concerns about the father’s capacity to parent, his mental health and his use of substances – where the children wish to spend time with the father – where supervised ordered to continue until oldest child turns 17 FAMILY LAW – EVIDENCE – where father sought to rely upon transcript of a recording made by child the subject of the proceedings – where mother contends transcript should be rejected on grounds of relevance, for contravention of Surveillance Devices Act 2007 (NSW), s 7 and s 138 of the Evidence Act 1995 (Cth) or under Court’s powers in Division 12A of the Family Law Act 1975 (Cth) – where held Court was unable to find the transcript had no probative value but should be rejected under powers in s 69ZX applying the principles in s 69ZN – where held inappropriate to make any finding that a child the subject of the proceedings had contravened Surveillance Devices Act 2007 (NSW), s 7 in circumstances where the child was driven to collect evidence on behalf of the father under influence of father’s narrative of victimhood – evidence rejected |
| Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) ss 55, 128, 138 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAB, 69ZN, 69ZT, 69ZX, 102NA(2) Surveillance Devices Act 2007 (NSW) s 7 |
| B & B (1993) FLC 92-357 Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Britt & Britt (2017) 56 Fam LR 526 CDJ v VAJ (1998) 197 CLR 172 Champness & Hanson (2009) FLC 93-407 Godfrey & Sanders (2007) 208 FLR 287 IMM v The Queen (2016) 257 CLR 300 In the Marriage of A (1998) FLC 92-800 Johnson & Page (2007) FLC 93-344 Jollie & Dysart [2014] FamCAFC 149 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 M v M (1988) 166 CLR 69 M & S (2007) FLC 93-313 Nagel & Clay (2020) 60 Fam LR 550 Napier & Hepburn (2006) FLC ¶93-303 N & S and the Separate Representative (1996) FLC 92-655 Potter & Potter (2007) FLC 93-326 R & R (Children’s Wishes) (2000) FLC ¶93-000 Sahrawi & Hadrami [2018] FamCAFC 170 Sigley & Evor (2011) 44 Fam LR 439 Stott & Holgar [2017] FamCAFC 152 Tibb & Sheean (2018) 58 FamLR 351 |
| APPLICANT: | Ms Hayes |
| RESPONDENT: | Mr Hayes |
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- AGLC
- HAYES & HAYES [2020] FamCA 1057
- Case
- [2020] FamCA 1057
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. Firstly, it needed to decide on the appropriate parenting arrangements for the children, specifically regarding parental responsibility and where the children would live, in light of the parties' agreement and the mother's specific concerns. Secondly, the court had to consider the admissibility of a transcript of a recording made by one of the children, which the father sought to rely upon. The mother opposed its admission, arguing it was irrelevant, contravened the *Surveillance Devices Act 2007* (NSW), and should be rejected under s 138 of the *Evidence Act 1995* (Cth) or the court's powers in Division 12A of the *Family Law Act 1975* (Cth).
Harper J reasoned that while the transcript could not be found to have no probative value, it should be rejected under the court's powers in s 69ZX of the *Family Law Act 1975* (Cth), applying the principles in s 69ZN. The court found it inappropriate to make a finding that the child had contravened the *Surveillance Devices Act 2007* (NSW), particularly as the child was influenced by the father's narrative of victimhood in collecting evidence. Consequently, the court ordered the discharge of all previous parenting orders, dismissed the father's application for contravention, and, by consent, ordered that the mother have sole parental responsibility and that the children live with her.
Orders
Orders of the court
Orders
1. All previous parenting orders in relation to the children X born … 2004 and Y born … 2007 (“the children”) be discharged.
2. The Application – Contravention filed by the father on 13 May 2019 be dismissed.
By consent The Court Orders
3. That the mother shall have sole parental responsibility for the children
4. That the children live with the mother.
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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