Hemman and Kallum - [2007] FamCA 1427

FAMILY COURT OF AUSTRALIA

HEMMAN & KALLUM

[2007] FamCA 1427

FAMILY LAW – CHILDREN – Final parenting orders and change of name – Father attended court but failed to participate in the proceedings – Orders made in terms of mother’s application as supported by Independent Children’s Lawyer

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

D & D [2005] FamCA 356
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598
Rice & Asplund (1979) FLC 90-725
KB & TC [2005] FamCA 458
Flannigan & Handcock (2001) FLC 93-074

APPLICANT:

Ms Hamman

RESPONDENT:

Mr Kallum

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLF

3925

2003

DATE DELIVERED:

14 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms J. Stewart

SOLICITOR FOR THE APPLICANT:

Kenna Teasdale Lawyers

THE RESPONDENT:

In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms E. Bender

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victoria Legal Aid

Orders

That the mother have sole parental responsibility for the child B HAMMAN-NANDAN born … February 2003.
That the child live with the mother.
That the child spend time and/or communication with the father as may be agreed between, or on behalf of, the mother and the father from time to time and evidenced in the writing providing that all such time be supervised by a person nominated by the mother (“the supervisor”) AND IT IS NOTED that the effect that this Order is that there is currently no enforceable order entitling the father to spend time with or communicate with the child.
That the father not consume alcohol or take illicit drugs 48 hours prior to, or during, his periods of time with the child and he notify the mother and/or the supervisor in the event that he is to spend time with the child and has within the previous 48 hours taken illicit drugs or consumed alcohol.
That the Court being satisfied that it is in the best interests of the child B HAMMAN-NANDAN born … February 2003 to be known as B HAMMAN:-
(a)each of the parties henceforth exclusively use the name HAMMAN as the surname of the child B born … February 2003, now known as B HAMMAN, and not cause or permit any other person to use any name other than HAMMAN as his surname;
(b)the mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as B HAMMAN-NANDAN to B HAMMAN, and the said Registrar do register the said child’s name as B HAMMAN.
That as soon as is reasonably practicable, the mother:-
(a)provide to the father a copy of each school report in relation to the child provided that the mother be at liberty to first delete any reference to the name or vicinity of the educational institution attended by the child and this Order does not apply to any reports issued prior to…

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 Hemman and Kallum

Details

AGLC: Hemman and Kallum [2007] FamCA 1427
Case: [2007] FamCA 1427
Decision Date: 14 June 2007

CaseChat Overview and Summary

In the matter of Hemman and Kallum, Bennett J of the Family Court of Australia made orders concerning the parenting of a child, B HAMMAN-NANDAN, born in February 2003. The dispute involved the mother and father of the child, with the court ultimately determining the arrangements for the child's upbringing and the surname to be used.

The court was required to determine the primary caregiver for the child, the living arrangements, and the extent of the father's time and communication with the child. Additionally, the court considered the child's surname and the father's conduct in relation to alcohol and drug consumption when interacting with the child. The court also addressed the dismissal of certain applications and the provision of information regarding the child's schooling and health.

Bennett J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The father's time and communication with the child were to be as agreed between the parties and supervised by a person nominated by the mother, with no enforceable order for unsupervised time currently in place. The father was also ordered not to consume alcohol or illicit drugs 48 hours prior to or during any time spent with the child and to notify the mother or supervisor if he had done so. The court further ordered that the child's surname be exclusively HAMMAN, authorising the mother to change the child's registered name accordingly. The father was ordered to contribute to the mother's costs and to provide his contact details for communication regarding the child. The father's response seeking parenting orders was dismissed, as was the mother's amended application, with the matter removed from the pending cases list. The court also discharged the order for an independent children's lawyer.

Orders

Orders of the court

That the mother have sole parental responsibility for the child B HAMMAN-NANDAN born … February 2003.

That the child live with the mother.

That the child spend time and/or communication with the father as may be agreed between, or on behalf of, the mother and the father from time to time and evidenced in the writing providing that all such time be supervised by a person nominated by the mother (“the supervisor”) AND IT IS NOTED that the effect that this Order is that there is currently no enforceable order entitling the father to spend time with or communicate with the child.

That the father not consume alcohol or take illicit drugs 48 hours prior to, or during, his periods of time with the child and he notify the mother and/or the supervisor in the event that he is to spend time with the child and has within the previous 48 hours taken illicit drugs or consumed alcohol.

That the Court being satisfied that it is in the best interests of the child B HAMMAN-NANDAN born … February 2003 to be known as B HAMMAN:-

(a) each of the parties henceforth exclusively use the name HAMMAN as the surname of the child B born … February 2003, now known as B HAMMAN, and not cause or permit any other person to use any name other than HAMMAN as his surname;

(b) the mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as B HAMMAN-NANDAN to B HAMMAN, and the said Registrar do register the said child’s name as B HAMMAN.

That as soon as is reasonably practicable, the mother:-

(a) provide to the father a copy of each school report in relation to the child provided that the mother be at liberty to first delete any reference to the name or vicinity of the educational institution attended by the child and this Order does not apply to any reports issued prior to 2007;

(b) advise the father of any significant health issue concerning the child;

That the father make a contribution to the mother’s costs of and incidental to the Court events on 4 April 2007 and 11 May 2007 such contribution to be fixed in the sum of $664 and the payment be made by 4pm on 14 August 2007 directly to the solicitors for the mother.

That the father advise and keep advised the mother of a postal address to which she can send the school reports and photographs referred to in paragraph 6 of this order and a telephone contact number through which the father can be advised of any health concerns affecting the child and, for the time being and pending any advice in writing by the father to the contrary, the address to which the mother can send all such correspondence and items is …, C and the father’s contact telephone number is ….

That the father’s response filed on 25 July 2005, insofar as it sought parenting and other orders, be and is hereby dismissed it being the case that he elected not to prosecute those proceedings before the Court.

10.

That the amended application of the mother filed on 8 November 2006 be otherwise dismissed.

11.

That this matter be removed from the pending cases list maintained by the Court.

12.

That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

13.

That all exhibits tendered in these proceedings be returned, to the party on whose behalf the exhibit was tendered, at the expiration of one calendar month unless an appeal is lodged.

14.

That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner at the expiration of one calendar month unless an appeal is lodged.

15.

That the Order made on 11 September 2003 requesting the appointment of an independent children’s lawyer be and is hereby discharged with effect from

15 June 2007

16.

That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the independent children’s lawyer.

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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