HAYES & HAYES

Case [2020] FamCA 1057


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

In the matter of HAYES & HAYES, Harper J of the Federal Circuit and Family Court of Australia considered parenting orders concerning two children. The dispute arose from the mother's contention that the father should only have supervised time with the children until they turned 18, citing significant concerns about his capacity to parent, mental health, and substance use. While the children expressed a wish to spend time with their father, he had accepted that they should continue to live with the mother, with whom they already resided.

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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