Henley and Henley - [2016] FamCA 681

FAMILY COURT OF AUSTRALIA

HENLEY & HENLEY

[2016] FamCA 681

FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to parental responsibility and time the child is to spend with the father – where there is a family consultant – where consideration is given to the best interests of the child and the primary and additional considerations – where it is ordered that the parties have shared parental responsibility – where it is ordered that the child live with the mother and spend four nights a fortnight with the father.

Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 60CE, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX

Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21

MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Henley

RESPONDENT:

Ms Henley

FILE NUMBER:

ADC

1876

2014

DATE DELIVERED:

19 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

14, 15, 16, 17 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mrs Lindsay

SOLICITOR FOR THE RESPONDENT:

Harry Alevizos Barrister & Solicitor

Orders

That the parties shall have equal shared parental responsibility for N born … 2010 (“the child”).
That the child shall live with the mother.
That the child shall spend time with the father as follows:-
(a)From the conclusion of school on Thursday or 4 pm if the child is not at school to the commencement of school on the following Monday or 10 am if the child is not at school and each alternate weekend thereafter commencing 26 August 2016;
(b)For one half of each end of term and end of year school holiday periods as agreed between the parties but in default of agreement for the first half of each school holiday period to be calculated by counting the last day of the school term as representing the first day of the school holidays and the day immediately before the first day of term as the last day PROVIDED that paragraph 3(a) herein be suspended during all periods of school holidays;
(c)Such further and other times as the parties may agree.
As and from 1 December 2016, the child shall spend time with each of his parents as follows:-
(a)In odd numbered years, with the mother from 2 pm Christmas Eve until 2 pm Christmas Day and with the father from 2 pm Christmas Day until 2 pm Boxing Day;
(b)In even numbered years, with the father from 2 pm Christmas Eve until 2 pm Christmas Day and with the mother from 2 pm Christmas Day until 2 pm Boxing Day.
That unless otherwise agreed between the parties and where the handover of the child does not occur at the child’s school:-
(a)The mother is to collect the child from KFC, D Street, Suburb I at the commencement of her time with the child;
(b)The father is to collect the child from…

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 Henley and Henley

Details

AGLC: Henley and Henley [2016] FamCA 681
Case: [2016] FamCA 681
Decision Date: 19 August 2016

CaseChat Overview and Summary

In the matter of *Henley and Henley*, Berman J of the Federal Circuit Court of Australia made orders concerning the parental responsibility and time arrangements for the child, N. The dispute centred on how N would live, spend time with, and be cared for by his parents.

The court was required to determine the specific arrangements for N's living situation, the division of his time between his parents, and the geographical restrictions on his residence and removal from Australia. Additionally, the court needed to address the practicalities of handover arrangements and the exchange of information regarding N's schooling and health.

Berman J ordered that the parties share equal parental responsibility for N. N was to live with the mother, and spend time with the father on a defined alternating weekly basis, including half of each school holiday period. The orders also stipulated specific arrangements for N's time with each parent during Christmas Eve, Christmas Day, and Boxing Day from 2016 onwards, and established a default handover location at a KFC. Crucially, the court imposed an injunction restraining either parent from changing N's principal place of residence from the metropolitan area of Adelaide or removing him from Australia. The parties were also authorised to receive direct information from N's school and were required to inform each other of any emergency medical or dental treatment.

Orders

Orders of the court

That the parties shall have equal shared parental responsibility for N born … 2010 (“the child”).

That the child shall live with the mother.

That the child shall spend time with the father as follows:-

(a) From the conclusion of school on Thursday or 4 pm if the child is not at school to the commencement of school on the following Monday or 10 am if the child is not at school and each alternate weekend thereafter commencing 26 August 2016;

(b) For one half of each end of term and end of year school holiday periods as agreed between the parties but in default of agreement for the first half of each school holiday period to be calculated by counting the last day of the school term as representing the first day of the school holidays and the day immediately before the first day of term as the last day PROVIDED that paragraph 3(a) herein be suspended during all periods of school holidays;

As and from 1 December 2016, the child shall spend time with each of his parents as follows:-

(a) In odd numbered years, with the mother from 2 pm Christmas Eve until 2 pm Christmas Day and with the father from 2 pm Christmas Day until 2 pm Boxing Day;

(b) In even numbered years, with the father from 2 pm Christmas Eve until 2 pm Christmas Day and with the mother from 2 pm Christmas Day until 2 pm Boxing Day.

That unless otherwise agreed between the parties and where the handover of the child does not occur at the child’s school:-

(a) The mother is to collect the child from KFC, D Street, Suburb I at the commencement of her time with the child;

(b) The father is to collect the child from KFC, D Street, Suburb I at the commencement of his time with the child.

That the parties be restrained and an injunction granted restraining each of them from changing the principal place of residence of the child from the metropolitan area of Adelaide and from removing or causing or allowing the child to be removed from the Commonwealth of Australia.

That each of the parties be authorised to receive direct from the child’s school (at their separate expense) information regarding the child’s attendance and progress including but not limited to school reports, school photos and parent newsletters.

That the parties will immediately advise each other of any emergency medical or dental treatment required by the child when in each of the parties separate care and shall provide details of any hospital or dental admission with the necessary authorities to enable each of the parties to contact any treating medical practitioner or dentist and obtain information in respect of the child’s health, ongoing medical or dental treatment or other health related matters affecting the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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