Hazelwood & Everett - [2023] FedCFamC2F 784

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hazelwood & Everett [2023] FedCFamC2F 784

File number(s): ADC 688 of 2021

Judgment of: JUDGE BROWN

Date of judgment: 28 June 2023

Catchwords: FAMILY LAW – Interim parenting arrangements – two children aged 13 and 4 – allegations of abuse, neglect and family violence – where the child has made serious disclosures to experts – whether a change in care arrangement would be in the children’s best interests – where the parties have a very limited co-parenting relationship – nature of interim hearing – role of independent children’s lawyer – assessment of risk – matters to be considered

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68LA

Cases cited:
B & B (1988) FLC 91- 957

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 93-286

H v W (1995) 18 Fam LR 788

M & M (1988) FLC 91-979

Marvel & Marvel (No 2) [2010] FamCAFC 101

R & R: Children’s Wishes (2000) 25 Fam LR 712

Slater & Light [2013] FamCAFC 4

SS v AH [2010] FamCAFC 13

Division: Division 2 Family Law

Number of paragraphs: 172

Date of hearing: 20 June 2023

Place: Adelaide

Solicitor for the Applicant: Ms Dansie, Stevens Law

Counsel for the Respondent: Mr Tredrea

Solicitor for the Respondent: Camatta Lempens

Solicitor for the Independent Children's Lawyer: Ms Shorter, Shorter Legal

ORDERS

ADC 688 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR EVERETT

Applicant

AND:
MS HAZELWOOD

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

28 June 2023

THE COURT ORDERS:
1.Within 7 days, MS HAZELWOOD (hereinafter referred to as ‘the mother’) and MR EVERETT (hereinafter referred to as ‘the father’) shall each undertake a hair follicle drug test at each parents sole expense, with such sample to test for illicit substances for a period of three (3) months and shall obtain, file and serve under an affidavit a copy of the test result report within 7 days of receipt of the report.
2.Until compliance with order (1) hereof, the mother and father are each restrained, and an injunction is hereby granted restraining the mother and father from:
(a)Cutting, shaving, colouring or bleaching their hair; and
(b)Using any chemicals or treatments on their hair other than commercially available shampoo and/or conditioner.

UNTIL FURTHER OR OTHER ORDER IT IS ORDERED AS FOLLOWS:
TIME SPENDING ARRANGEMENTS
3.Paragraphs 2 and 3 of the Orders of 24 June 2021 be discharged.
4.X born in 2009 live with the father from the conclusion of school on Friday 30 June 2023.
5.X spend time and communicate with the mother in accordance with her wishes.
6.Y born in 2018 live the father commencing from after kindergarten on 30 June 2023 and spend time with the mother on each alternate weekend from the conclusion of school (or 3.00pm if a non-school day) Friday to 5.00pm the following Sunday…

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 Hazelwood & Everett

Details

AGLC: Hazelwood & Everett [2023] FedCFamC2F 784
Case: [2023] FedCFamC2F 784
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to make interim parenting orders for two children, X and Y, aged 13 and 4 respectively. The parents, Mr Everett and Ms Hazelwood, have a contentious relationship, with each party alleging neglect, abuse, and family violence. Both parents have a history of drug use, and there are allegations of domestic violence involving the mother's partner, Mr B. The case involved complex allegations of parental conflict, manipulation, and the impact on the children. The Independent Children's Lawyer, Ms Shorter, recommended that the children live primarily with Mr Everett and that the mother have visitation rights. The court was required to balance the need to protect the children from harm with the potential disruption of changing their living arrangements. The court considered the views of the children, the level of risk in each parent's household, and the importance of maintaining stability in the children's lives. Given the serious allegations and the lack of objective evidence, the court adopted a conservative approach. The court ordered that Y live with the father from the conclusion of school on 30 June 2023, with the mother having visitation rights. X was to live with the father, but the court did not make specific orders regarding her living arrangements with her mother, leaving her a free agent in this regard. The court also ordered drug testing for both parents, parenting courses, and mental health support for X. The court emphasised that these orders were provisional and subject to change at a final hearing.

Orders