Herbert and Herbert - [2020] FamCA 213

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT

[2020] FamCA 213

FAMILY LAW – CHILDREN – Parenting – Interim – Where a trial has been heard and judgment is reserved – Where interim orders provide for the children to have no contact with the mother – Where this is the second application for a recovery order for the 16 year old child – Where the child expressed a preference to live with the mother – Where the mother sought interim orders for both children to return to her care – Where the Independent Children’s Lawyer sought there be no orders made in relation to the 16 year old child.

Family Law Act 1975 (Cth) s 60CC

Bondelmonte and Bondelmonte & Anor (2016) 259 CLR 662, (2017) FLC 93-763

APPLICANT:

Mr Herbert

RESPONDENT:

Ms Herbert

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

4902

2017

DATE DELIVERED:

5 February 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30 January and 4 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Rosen Lawyers

THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid Lawyer & Migration Agent

Orders

That all previous parenting orders in respect of the child, X born … 2003, are discharged.

IT IS ORDERED UNTIL FURTHER ORDER

That the child, X born … 2003, shall live with whichever parent he shall personally determine from time to time.
That the parent with whom X is living from time to time shall have sole parental responsibility for decisions to be made about major long-term issues in the said child’s life (as defined in section 4 of the Family Law Act 1975) save for decisions about the child’s name for which parental responsibility shall be shared equally.
That commencing this Sunday, 9 February 2020, X shall spend time with the father and his brother, Y born … 2009, from 2.00 pm until 6.00 pm each second Sunday afternoon and he shall spend such other time with his father and/or his brother as may be agreed between X and his father from time to time with the arrangements for X to get to and from his father’s care to be made between him and his father.
That the father shall refrain from using physical discipline on X at all times.
That X shall meet as soon as can be conveniently arranged with Mr K, Senior Family Consultant at the Child Dispute Services section of the Brisbane Registry of this Court, for Mr K to explain this outcome and these Orders and for Mr K to facilitate X’s reading of these written reasons for judgment.
That the Independent Children’s Lawyer shall inform X as soon as practicable of the outcome of this matter and the requirements of these Orders and no other person shall inform X of same before the Independent Children’s Lawyer does and no other person other than Mr K shall…

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 Herbert and Herbert

Details

AGLC: Herbert and Herbert [2020] FamCA 213
Case: [2020] FamCA 213
Decision Date: 5 February 2020

CaseChat Overview and Summary

In *Herbert and Herbert*, Forrest J of the Family Court of Australia considered parenting orders for a child named X. The dispute involved applications concerning X's living arrangements and parental responsibility.

The court was required to determine the most appropriate parenting orders for X, considering his age and capacity to make decisions about his own life. This included determining with whom X should live, how parental responsibility for major long-term issues should be allocated, and the nature and extent of X's time with his father and brother. The court also had to consider the father's use of physical discipline and the communication of the court's orders to X.

Forrest J applied the paramountcy principle enshrined in the *Family Law Act 1975* (Cth), which dictates that the best interests of the child are the primary consideration. The court found that X, by reason of his age and maturity, was capable of determining with which parent he should live from time to time. Consequently, the court ordered that X should live with whichever parent he personally determined. Parental responsibility for major long-term issues was vested in the parent with whom X was living, with the exception of decisions regarding X's name, for which responsibility was shared equally. Specific provisions were made for X to spend time with his father and brother, and the father was prohibited from using physical discipline. The court also made detailed orders regarding the communication of the judgment and orders to X, emphasizing the role of a Senior Family Consultant and the Independent Children's Lawyer.

Orders

Orders of the court

That all previous parenting orders in respect of the child, X born … 2003, are discharged.

IT IS ORDERED UNTIL FURTHER ORDER

That the child, X born … 2003, shall live with whichever parent he shall personally determine from time to time.

That the parent with whom X is living from time to time shall have sole parental responsibility for decisions to be made about major long-term issues in the said child’s life (as defined in section 4 of the Family Law Act 1975) save for decisions about the child’s name for which parental responsibility shall be shared equally.

That commencing this Sunday, 9 February 2020, X shall spend time with the father and his brother, Y born … 2009, from 2.00 pm until 6.00 pm each second Sunday afternoon and he shall spend such other time with his father and/or his brother as may be agreed between X and his father from time to time with the arrangements for X to get to and from his father’s care to be made between him and his father.

That the father shall refrain from using physical discipline on X at all times.

That X shall meet as soon as can be conveniently arranged with Mr K, Senior Family Consultant at the Child Dispute Services section of the Brisbane Registry of this Court, for Mr K to explain this outcome and these Orders and for Mr K to facilitate X’s reading of these written reasons for judgment.

That the Independent Children’s Lawyer shall inform X as soon as practicable of the outcome of this matter and the requirements of these Orders and no other person shall inform X of same before the Independent Children’s Lawyer does and no other person other than Mr K shall show X these written reasons or discuss them with him.

That the Application-Contravention filed by the mother on 25 October 2019 and the Application-Contempt filed by the mother on 22 January 2020 shall be mentioned again at the delivery of the final judgment in the property adjustment and parenting orders proceedings.

That all other applications for interim orders are dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.