Healey and Osbourne - [2017] FCCA 1277

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEALEY & OSBOURNE

[2017] FCCA 1277

Catchwords:
FAMILY LAW – Parenting – interim hearing – two children aged 4 and 1 – relocation of mother and children to Queensland – whether there was consent to the relocation – spend time with father – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Cases cited:

MRR v GR [2010] HCA 4

Goode & Goode [2006] FamCA 1346

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

McCall v Clarke [2009] FamCAFC 92

Oswald & Karrington [2016] FamCAFC 152

Sampson & Hartnett (No.10) [2007] FamCA 1365

Applicant:

MR HEALEY

Respondent:

MS OSBOURNE

File Number:

NCC 258 of 2017

Judgment of:

Judge Middleton

Hearing date:

2 June 2017

Date of Last Submission:

2 June 2017

Delivered at:

Newcastle

Delivered on:

29 June 2017

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Byrnes Lawyers

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:

Tony Cox Lawyers

ORDERS

That the proceedings be transferred to the Federal Circuit Court of Australia at Brisbane on 3 October 2017 at 9.30am for directions before Judge Coates;
That the children, X born (omitted) 2013 and Y born (omitted) 2016 (“the children”) live with the mother;
That the parents have equal shared parental responsibility for the children;
That the mother and the children be permitted to continue to reside on the (omitted) Queensland;
That the children spend time with the father as agreed and failing agreement no less than:
(a)For 3 months from the commencement of the first time the children spend with their father following these orders as follows:
(i)For such time as is available at Harmony House on the (omitted) and for a minimum of 2 hours once each month;
(ii)Such time to be supervised by Harmony House;
(b)At the expiration of 3 months and provided the children have spent time with their father on each occasion pursuant to these orders, once each month from 9.00am Saturday until 1.00pm Saturday for a period of 3 months;
(c)Thereafter and provided the children have spent time with the father in accordance with these orders, once each month from 9.00am Saturday until 5.00pm Saturday and continuing until further order.
That both the mother and the father contact Harmony House within 48 hours of receipt of these orders for the purposes of engaging in an intake session with Harmony House.
Both parents are to comply with all reasonable directions of the Harmony House coordinator.
Both parents are to contact Relationships Australia within 48 hours of receipt of these orders for the purpose of engaging in and completing a parenting after separation program.

IT IS NOTED that publication of this judgment under the pseudonym Healey & Osbourne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 258 of 2017

MR HEALEY

Applicant

And

MS OSBOURNE

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting application involving two children, X born (omitted) 2013,…

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 Healey and Osbourne

Details

AGLC: Healey and Osbourne [2017] FCCA 1277
Case: [2017] FCCA 1277
Decision Date: 29 June 2017

CaseChat Overview and Summary

In the matter of Healey and Osbourne, heard before Judge Middleton, the dispute concerned parenting orders for two children. The orders addressed issues of residence, parental responsibility, and the time the children would spend with each parent, including specific arrangements for supervised contact and a phased approach to unsupervised time.

The court was required to determine the most appropriate arrangements for the children, considering their best interests. This involved making decisions regarding where the children would live, how parental responsibilities would be shared, and the nature and frequency of contact between the children and their father, particularly in light of the existing circumstances and the involvement of external support services.

Judge Middleton ordered that the children live with the mother and that both parents have equal shared parental responsibility. The mother and children were permitted to continue residing in Queensland. The court also made detailed provisions for the children to spend time with the father, commencing with supervised contact at Harmony House and gradually transitioning to unsupervised time over a period of months, contingent on compliance with the orders. Both parents were directed to engage with Harmony House and Relationships Australia for intake sessions and parenting programs, and to comply with the directions of the Harmony House coordinator. The proceedings were subsequently transferred to the Federal Circuit Court of Australia for further directions.

Orders

Orders of the court

That the proceedings be transferred to the Federal Circuit Court of Australia at Brisbane on 3 October 2017 at 9.30am for directions before Judge Coates;

That the children, X born (omitted) 2013 and Y born (omitted) 2016 (“the children”) live with the mother;

That the parents have equal shared parental responsibility for the children;

That the mother and the children be permitted to continue to reside on the (omitted) Queensland;

That the children spend time with the father as agreed and failing agreement no less than:

(a) For 3 months from the commencement of the first time the children spend with their father following these orders as follows:

(i) For such time as is available at Harmony House on the (omitted) and for a minimum of 2 hours once each month;

(ii) Such time to be supervised by Harmony House;

(b) At the expiration of 3 months and provided the children have spent time with their father on each occasion pursuant to these orders, once each month from 9.00am Saturday until 1.00pm Saturday for a period of 3 months;

(c) Thereafter and provided the children have spent time with the father in accordance with these orders, once each month from 9.00am Saturday until 5.00pm Saturday and continuing until further order.

That both the mother and the father contact Harmony House within 48 hours of receipt of these orders for the purposes of engaging in an intake session with Harmony House.

Both parents are to comply with all reasonable directions of the Harmony House coordinator.

Both parents are to contact Relationships Australia within 48 hours of receipt of these orders for the purpose of engaging in and completing a parenting after separation program.

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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