Hickson and Gregg - [2009] FMCAfam 20

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HICKSON & GREGG

[2009] FMCAfam 20

FAMILY LAW – Children – relocation – parental responsibility – the father’s threats to mother’s partner – father’s use of coarse language about the mother – credit – conflict between parents causing stress to child – family violence – harm to child – communication by mobile telephone causing stress to child.

Family Law Act 1975 (Cth) ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Morgan & Miles (2007) FLC 93-343
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A; Relocation Approach (2000) FLC 92-035
U v U (2002) 211 CLR 238, (2002) FLC 93-112
P & P [2006] FMCAfam 518
Bolitho and Cohen (2005) FLC 93-224
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102

Applicant:

MS HICKSON

Respondent:

MR GREGG

File Number:

LNC 408 of 2007

Judgment of:

Roberts FM

Hearing dates:

6 & 7 November, 17 December 2007

Date of Last Submission:

17 December 2007

Delivered at:

Launceston

Delivered on:

21 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr P McVeity

Solicitors for the Applicant:

Temple-Smith Partners

The Respondent was not represented.

Counsel for the Independent Child’s Lawyer:

Mr I Guest

Solicitors for the Independent Child’s Lawyer:

Ian Guest & Associates

ORDERS

That all previous parenting orders are discharged.
That MS HICKSON (“the mother”) is to have sole parental responsibility for [X] born in 1997 (“the child”).
That the child is to live with the mother.
That the mother is permitted to relocate with the child to Queensland.
That the child is to spend time and communicate with MR GREGG (“the father”) as follows:
(a)each alternate year commencing in 2009 for the entirety of the first term Queensland school holiday period;
(b)for a minimum of ten days in each of the second and third term Queensland school holiday periods each year;
(c)for one half of each Queensland summer school holiday, such to include Christmas Day in each even numbered year commencing in 2010;
(d)at such other times as may be agreed when the father is in Queensland; and
(e)by landline telephone only twice per week on Mondays and Thursdays at 6.30 p.m. with each call to be initiated from the mother’s telephone.
That for the purposes of the preceding order hereof, the parties are to share the costs of air travel for the child between Queensland and Tasmania and return, on the basis of the father booking and paying for each Queensland to Tasmania trip and the mother booking and paying for each Tasmania to Queensland trip.
That the father must not communicate with child by mobile telephone unless such communication is agreed to in writing by the mother.
That the mother must keep the father informed at all times of the child’s residential address and of the school that he is attending.
That the mother must authorise any school that the child is attending to provide the father with any reports, notices, photographs and other information that an enrolling…

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 Hickson and Gregg

Details

AGLC: Hickson and Gregg [2009] FMCAfam 20
Case: [2009] FMCAfam 20
Decision Date: 21 January 2009

CaseChat Overview and Summary

The case of Hickson and Gregg involved a dispute between the mother, Ms Hickson, and the father, Mr Gregg, concerning the care and custody of their child, born in 1997. The matter was heard in the Family Court of Australia. The primary issue before the court was to determine the best interests of the child, including parental responsibility, living arrangements, and the visitation schedule with the non-custodial parent.

The court was tasked with interpreting the relevant legislative provisions under the Family Law Act 1975 to ascertain the appropriate parenting orders. This involved weighing the evidence presented by both parties, assessing the child's needs, and considering the implications of the proposed relocation to Queensland. The court had to balance the mother’s desire for stability and the father’s wish for significant contact time, while also ensuring the child's safety and well-being.

After considering the evidence and the statutory criteria, the court determined that it was in the child's best interests for the mother to have sole parental responsibility, with the child residing with her in Queensland. The court devised a comprehensive visitation schedule for the father, which included extended periods during school holidays and specified times for communication by landline telephone. The court also ordered the sharing of travel costs and imposed restrictions on the father's use of mobile telephones for communication with the child. Furthermore, the mother was directed to keep the father informed about the child's whereabouts and educational progress, and to ensure that both parents are kept abreast of any medical treatments the child may require.

The court's final orders included the discharge of previous parenting orders, granting sole parental responsibility to the mother, and specifying detailed visitation and communication arrangements for the father, alongside other conditions to ensure the child's welfare and facilitate communication between the parents.

Orders

Orders of the court

That all previous parenting orders are discharged.

That MS HICKSON (“the mother”) is to have sole parental responsibility for [X] born in 1997 (“the child”).

That the child is to live with the mother.

That the mother is permitted to relocate with the child to Queensland.

That the child is to spend time and communicate with MR GREGG (“the father”) as follows:

(a) each alternate year commencing in 2009 for the entirety of the first term Queensland school holiday period;

(b) for a minimum of ten days in each of the second and third term Queensland school holiday periods each year;

(c) for one half of each Queensland summer school holiday, such to include Christmas Day in each even numbered year commencing in 2010;

(d) at such other times as may be agreed when the father is in Queensland; and

(e) by landline telephone only twice per week on Mondays and Thursdays at 6.30 p.m. with each call to be initiated from the mother’s telephone.

That for the purposes of the preceding order hereof, the parties are to share the costs of air travel for the child between Queensland and Tasmania and return, on the basis of the father booking and paying for each Queensland to Tasmania trip and the mother booking and paying for each Tasmania to Queensland trip.

That the father must not communicate with child by mobile telephone unless such communication is agreed to in writing by the mother.

That the mother must keep the father informed at all times of the child’s residential address and of the school that he is attending.

That the mother must authorise any school that the child is attending to provide the father with any reports, notices, photographs and other information that an enrolling parent would normally be entitled to receive.

10.

That should the child require any medical treatment while he is with either parent, the parent with whom he is at that time must advise the other parent of full particulars of that medical treatment at the first available opportunity.

11.

That the Application and Response in this matter are otherwise dismissed.

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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