Henley and Henley (No 2) - [2019] FamCA 424

FAMILY COURT OF AUSTRALIA

HENLEY & HENLEY (NO. 2)

[2019] FamCA 424

FAMILY LAW – CHILDREN – Best interests of the child – Where the father seeks orders for equal time – Where the family report writer does not support an equal time arrangement before the child turns 10 – Where the father challenges the mother’s capacity to care for the child properly – Where the court not persuaded the mother presents any risk of harm to the extent it should reduce her time with the child – Where alleged family violence – Where the mother accused the father of making her engage in sexual encounters without her consent – Where the court satisfied the accusations do not inform the outcome of the proceedings – Where the court satisfied that both an equal time, or substantial and significant time regime would be reasonably practicable – Where there ought be a continuation of the current regime until the child turns at least 10.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61DAA, 65DAA
Evidence Act 1995 (Cth) ss 140

B & B: Family Law Reform Act 1995 (1997) FLC 92-755

Henley & Henley [2016] FamCA 681

Henley & Henley [2017] FamCAFC 142

Henley & Henley [2018] FamCA 694
Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
K v R (1997) 22 FamLR 592
Re W [2004] FamCA 768

APPLICANT:

Mr Henley

RESPONDENT:

Ms Henley

FILE NUMBER:

ADC

1876

2014

DATE DELIVERED:

4 July 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns (via video link to Adelaide)

JUDGMENT OF:

Tree J

HEARING DATE:

25 and 26 March 2019

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITORS FOR THE RESPONDENT:

Harry Alevizos Solicitor

Orders

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;
That otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henley & Henley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS…

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 (No 2)

Details

AGLC: Henley and Henley (No 2) [2019] FamCA 424
Case: [2019] FamCA 424
Decision Date: 4 July 2019

CaseChat Overview and Summary

In *Henley and Henley (No 2)*, the Federal Circuit and Family Court of Australia considered parenting arrangements for a child. The dispute concerned the specific terms of the child's time spent with the father.

The primary legal issue before the Court was to determine the precise schedule for the child's time with the father, addressing the transition points and frequency of these arrangements. The Court was also required to consider the disposition of any outstanding applications and the future management of the case.

Tree J ordered that the child would spend time with the father from the conclusion of school on Thursdays (or 4 pm if the child was not at school) until the commencement of school on the following Monday (or 10 am if the child was not at school), and this arrangement would apply on alternate weekends thereafter. All other extant applications were dismissed, and the matter was removed from the list of active pending cases.

Orders

Orders of the court

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;

That otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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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