HILLIARDS & WILLMOTT - [2019] FCCA 2468

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILLIARDS & WILLMOTT

[2019] FCCA 2468

Catchwords:
FAMILY LAW – Parenting – competing live with applications – 4 children all diagnosed as having special needs – risk of harm - assessment of capacity to meet children’s needs – best interests – where children have been living other than in accordance with orders.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 65DAA, 60CG, 69ZT
Evidence Act 1995 (Cth), ss.59,76, 135

Cases cited:

Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Rhoden v Wingate [2002] NSWCA 165
Salah& Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant:

MS HILLIARDS

Respondent:

MR WILLMOTT

File Number:

PAC 3808 of 2011

Judgment of:

Judge Obradovic

Hearing dates:

3 - 7 December 2018 and 5 - 6 August 2019

Date of Last Submission:

6 August 2019

Delivered at:

Parramatta

Delivered on:

3 September 2019

REPRESENTATION

Counsel for the Applicant:

Ms Friedlander

Solicitors for the Applicant:

Higgins Lawyers

Appearing for the Respondent:

In person

Counsel for the Independent Children's Lawyer:

Mr Maddox

Solicitors for the Independent Children's Lawyer:

Sarah Bevan Family Lawyers

ORDERS

All prior parenting orders with respect to the children X born … 2004, W born … 2005, Y born … 2007 and Z born … 2009 (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The father is to keep the mother fully informed, in a timely manner, of all decisions being contemplated by him, and then decisions made by him in exercise of his sole parental responsibility, and in making any such decisions, he must take into account any input provided by the mother.
The children shall live with the father.
The children shall spend time with the mother as follows:
(a)Commencing on Friday 6 September 2019 and each alternate weekend thereafter from the conclusion of school on Friday until the commencement of school on Monday;
(b)In the school holidays following terms 1 and 3 from the conclusion of school on the last day of the school term for the children until 5pm on the 8^th day thereafter;
(c)In the school holidays following term 2, for a period of 12 days:
(i)To conclude at the commencement of the first school day in term 3 for students at the children’s school; and
(ii)To commence at 9am on the day which is 12 days prior to the day referred to in order (5)(c)(i) above, being the conclusion of that period.
(d)In the summer school holidays in 2019/2020 and each alternate year thereafter:
(i)From 5pm on 24 December to 5pm on 3 January; and
(ii)From 5pm on 20 January to 5pm on 27 January.
(e)In the summer school holidays in 2020/2021 and each alternate year thereafter:
(i)From the conclusion of the last day of school on which students are to attend in term 4 to 5pm on 24 December; and
(ii)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 HILLIARDS & WILLMOTT

Details

AGLC: HILLIARDS & WILLMOTT [2019] FCCA 2468
Case: [2019] FCCA 2468
Decision Date: 3 September 2019

CaseChat Overview and Summary

In the matter of Hilliards & Willmott, heard by Judge Obradovic, the dispute concerned competing applications for live with orders concerning four children, all of whom had been diagnosed with special needs. The proceedings also addressed concerns regarding a risk of harm and the capacity of each parent to meet the children's needs, particularly in circumstances where the children had not been living in accordance with prior orders.

The court was required to determine the paramount consideration of the children's best interests, assessing which parent was better placed to meet their complex needs. This involved evaluating the parents' respective capacities to manage the children's special needs, addressing any identified risks of harm, and considering the children's current living arrangements and their impact.

The court's reasoning focused on the father's demonstrated capacity to meet the children's specific needs, particularly in light of their special needs diagnoses. The judge found that the father was better positioned to provide the stability and care required. Consequently, the court discharged all prior parenting orders and made orders granting the father sole parental responsibility for the children, with the children to live with him. The mother was granted specific time with the children, and detailed provisions were made regarding communication, information sharing, and the involvement of the children's grandparents. The orders also included provisions for the parties to refrain from making derogatory remarks about each other in the children's presence and to keep each other informed of the children's medical and personal details.

Orders

Orders of the court

All prior parenting orders with respect to the children X born … 2004, W born … 2005, Y born … 2007 and Z born … 2009 (“the children”) are discharged.

The father shall have sole parental responsibility for the children.

The father is to keep the mother fully informed, in a timely manner, of all decisions being contemplated by him, and then decisions made by him in exercise of his sole parental responsibility, and in making any such decisions, he must take into account any input provided by the mother.

The children shall live with the father.

The children shall spend time with the mother as follows:

(a) Commencing on Friday 6 September 2019 and each alternate weekend thereafter from the conclusion of school on Friday until the commencement of school on Monday;

(b) In the school holidays following terms 1 and 3 from the conclusion of school on the last day of the school term for the children until 5pm on the 8th day thereafter;

(i) To conclude at the commencement of the first school day in term 3 for students at the children’s school; and

(ii) To commence at 9am on the day which is 12 days prior to the day referred to in order (5)(c)(i) above, being the conclusion of that period.

(d) In the summer school holidays in 2019/2020 and each alternate year thereafter:

(i) From 5pm on 24 December to 5pm on 3 January; and

(ii) From 5pm on 20 January to 5pm on 27 January.

(e) In the summer school holidays in 2020/2021 and each alternate year thereafter:

(i) From the conclusion of the last day of school on which students are to attend in term 4 to 5pm on 24 December; and

(ii) From 5pm on 10 January to 5pm on 20 January.

(f) On the weekend on which Mother’s Day falls from the conclusion of school on Friday to the commencement of school on Monday.

(g) At other times as agreed between the parties in writing.

For the purpose of changeovers which do not occur at school, the parties are to effect changeover in the carpark of McDonalds at Suburb E.

The parties shall refrain from making critical or derogatory remarks in relation to the other party in the presence or hearing of the children, and each party must do all things necessary to ensure that no third person makes critical or derogatory remarks in relation to the other party in the presence or hearing of the children.

The father must provide the mother, in a timely manner, with full details of all appointments scheduled for the children with a health care professional, and the outcome of all such appointments.

The father is to allow the children to spend time with and communicate with the paternal grandparents at all reasonable times in accordance with their wishes.

10.

The parties must keep the other party informed of:

(a) Their current address and contact telephone numbers and advise the other party of any changes to these details within 7 days of such change occurring;

(b) All medical issues suffered by the children with such notification to be prompt, but in the case of emergency, as soon as practicable; and

11.

Each party is to notify the other party within three hours of any admission of the children to a hospital or of receipt of treatment by a medical practitioner including issuing a script for medication and provide the said hospital or relevant medical practitioner with all consents necessary for the other party to discuss the child/ren’s diagnosis and treatment with the medical practitioner.

12.

The parties shall be at liberty to telephone the children at all reasonable times whilst the children are in the care of the other party.

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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