Hinman and Hinman and Anor - [2019] FCCA 3276

FEDERAL CIRCUIT COURT OF AUSTRALIA

HINMAN & HINMAN & ANOR

[2019] FCCA 3276

Catchwords:
FAMILY LAW – Parenting – applicant is the maternal uncle – children are living with him – mother having a long history of drug and mental health issues – father having a long history of drug use and a long criminal history – father presently being held on remand relating to charges including carjacking, holding a knife to the mother’s throat and possession of methylamphetamine – children exposed to incidents of family violence – substantial DHHS involvement – past Children’s Court orders for children to be in the care of the maternal grandparents for 2.5 years – the maternal grandparents then feeling unable to continue to care for children – maternal uncle prepared to care for children.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Lawson v Warren and Ors [2011] FamCA 38
Rice and Asplund (1979) FLC 90–725; [1978] FamCA 84

Applicant:

MR HINMAN

First Respondent:

MS HINMAN

Second Respondent:

MR LUCAS

File Number:

MLC 14732 of 2018

Judgment of:

Judge Riley

Hearing date:

1 October 2019

Date of last submission:

1 October 2019

Delivered at:

Melbourne

Delivered on:

14 November 2019

REPRESENTATION

Counsel for the applicant:

Eleanor Mallett

Solicitors for the applicant:

Wilkinson Romer and Associates Pty Ltd

Counsel for the first respondent:

Ian Duffy

Solicitors for the first respondent:

McIntyre & Statton

Counsel for the second respondent:

Mark Leach

Solicitors for the second respondent:

Pentana Stanton Lawyers

Advocate for the independent children’s lawyer:

Danielle Webb

Solicitors for the independent children’s lawyer:

Danielle Webb Lawyer

ORDER:

The applicant maternal uncle (“Mr Hinman”) have sole parental responsibility for Y born on … 2007 (“Y”) and X born on … 2013 (“X”).

ORDER BY CONSENT:

Y and X live with Mr Hinman.

ORDER:

Y and X spend time and communicate by telephone or other means with their mother supervised by Mr Hinman, or his nominee, on dates and at times agreed between Mr Hinman and the mother.

ORDER BY CONSENT:

In the event that the mother presents as alcohol or drug affected or with a deterioration of her mental health that would be disruptive to Y and X, or either of them, Mr Hinman, or his nominee, be at liberty to terminate Y and X’s time or telephone call with their mother.

ORDERS:

Y and X communicate with their father by telephone or video call for up to half an hour once per month, or as otherwise agreed between Mr Hinman and the father, at times to be arranged between Mr Hinman and the prison authorities while the father is in prison, and between Mr Hinman and the father after he is released from prison, with the father to place the calls and Mr Hinman to facilitate the calls.
Mr Hinman be at liberty to determine whether any particular call be by telephone or video call.
Mr Hinman or his nominee be at liberty to supervise the telephone or video…

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.

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Details

Case: [2019] FCCA 3276
Decision Date: 14 November 2019

CaseChat Overview and Summary

This matter concerned orders made by Judge Riley regarding the communication and contact arrangements between the father and his children, Y and X. The proceedings involved Mr Hinman, acting in a supervisory capacity, the father, and the mother. The core of the dispute revolved around establishing a framework for contact between the father and the children, particularly in light of the father's incarceration and concerns regarding his conduct and substance use.

The court was required to determine the terms and conditions under which the father could communicate with and spend time with Y and X. This included establishing protocols for telephone and video calls, supervised contact at a contact centre, and eventually unsupervised time. Key issues included the father's abstinence from illicit substances, his behaviour during contact, and the role of Mr Hinman in facilitating and supervising these arrangements. The court also addressed communication between the father and the paternal family, as well as general provisions concerning the children's welfare and the conduct of the parents.

The court's reasoning, as reflected in the orders, prioritised the safety and well-being of Y and X. A graduated approach to contact was adopted, commencing with limited, supervised communication and progressively increasing the level of contact and unsupervised time, contingent upon the father's demonstrated compliance with strict conditions. These conditions included regular hair follicle testing to prove abstinence from illicit substances, engagement with a contact centre, and refraining from abusive or inappropriate behaviour. Mr Hinman was granted significant discretion to supervise, terminate, or cease contact if the father's conduct warranted it, with provisions for the father to apply for further orders. The orders also imposed injunctions on all parties to prevent denigration of each other and discussion of the family law dispute in the presence of the children, and to ensure the children's protection from individuals engaged in criminal activity.

Orders

Orders of the court

Y and X communicate with their father by telephone or video call for up to half an hour once per month, or as otherwise agreed between Mr Hinman and the father, at times to be arranged between Mr Hinman and the prison authorities while the father is in prison, and between Mr Hinman and the father after he is released from prison, with the father to place the calls and Mr Hinman to facilitate the calls.

Mr Hinman be at liberty to determine whether any particular call be by telephone or video call.

Mr Hinman or his nominee be at liberty to supervise the telephone or video calls, and terminate any particular call after less than 30 minutes if Y and X have had enough.

In the event that, prior to or during a call, the father is abusive, offensive, inappropriate or appears drug affected, Mr Hinman be at liberty to:

(a) terminate any telephone or video call between Y and X and their father; and

(b) cease any future telephone or video calls pending further order of the court upon the father’s application.

If they have not already done so, Mr Hinman and the father forthwith take all necessary steps to enrol in and meet the entry requirements for A Contact Centre in City NN for the purposes of Y and X spending supervised time there with their father.

10.

Provided that the father:

(a) has been released from custody for at least three months; and

(b) has provided to Mr Hinman one or more hair follicle tests from an accredited laboratory showing that the father has completely abstained from illicit substances for a period of six months;

(c) provides to Mr Hinman further hair follicle tests each three months showing that the father has completely abstained from illicit substances for the preceding three months;

(d) has enrolled in A Contact Centre and complied with all of the engagement requirements of that service; and

(e) refrains from being abusive, offensive or inappropriate and does not appear to be drug-affected,

then Y and X spend two hours each alternate Saturday with their father under supervision at A Contact Centre for a period of six months.

11.

Upon compliance with order 10, and provided that the father continues to provide to Mr Hinman hair follicle tests each three months showing that the father has completely abstained from illicit substances for the preceding three months, Y and X spend time with their father unsupervised each alternate Saturday from 12md until 4pm for a period of six months.

12.

Upon compliance with order 11, and provided that the father continues to provide to Mr Hinman hair follicle tests each three months showing that the father has completely abstained from illicit substances for the preceding three months, Y and X spend time with their father unsupervised:

(a) from 10am until 5pm each alternate Saturday;

(b) from 12md until 5pm on Father’s Day;

(d) from 10am until 4pm on Christmas Day in even numbered years;

(e) from 10am until 4pm on Boxing Day in odd numbered years; and

(f) as otherwise agreed in writing.

13.

If the father is abusive, offensive or inappropriate or appears drug affected, then Mr Hinman be at liberty to cease any further contact between Y and X and their father pending further order of the court upon the father’s application.

14.

Changeover occur as agreed in writing between Mr Hinman and the father.

15.

Mr Hinman and the father only communicate with each other by email or text message and only communicate with each other about the care and welfare of Y and X or either of them.

ORDER BY CONSENT:

16.

Without admitting the necessity for the same, the mother be restrained from enabling or permitting the father to communicate with Y and X, or either of them, by any means.

ORDERS:

17.

Y and X have telephone or other electronic communication with members of the paternal family at times and places as agreed between Mr Hinman and the paternal grandmother provided that the paternal family do not permit or allow the father to intrude or take part in this communication without the written consent of Mr Hinman.

18.

Mr Hinman be at liberty to terminate any such call in the event of inappropriate language, abuse, or the presence of the father.

19.

Mr Hinman notify the father in writing within 14 days of a post office box address to which the father can send letters, cards and gifts to Y and X.

20.

The father be at liberty to send letters, cards and gifts to Y and X at the post office box address nominated by Mr Hinman.

21.

Mr Hinman be at liberty to examine any letters, cards and gifts the father sends to Y and X or either of them, and to not forward them to Y and X or either of them if he deems the letters, cards or gifts not to be in their best interests.

22.

The mother, the father and Mr Hinman notify each other of any serious medical injury, serious illness or hospital admission in respect of Y and X or either of them, as soon as practicable after that event occurs and the mother, the father and Mr Hinman are authorised to speak to any treating medical practitioner or specialist in relation to that event and this order shall serve as authority for same.

23.

The mother, the father and Mr Hinman do all things as are necessary to ensure each of them can receive (at their own expense) copies of all newsletters, notices, photographs and other information provided by any school attended by Y and X or either of them.

24.

The mother, the father and Mr Hinman be restrained by injunction from consuming alcohol to excess, non-prescription drugs or any illicit substances in the presence of Y and X or either of them or be in any way affected by them while Y and X or either of them for 24 hours prior to and during any period of time that Y and X or either of them are in that person’s care.

25.

The mother, the father and Mr Hinman, by themselves and their servants and agents, be restrained from:

(a) denigrating each other within the hearing or presence of Y and X or either of them;

(b) discussing any aspect of the family law dispute between the mother, the father and Mr Hinman within the hearing or presence of Y and X or either of them; and

26.

Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A) Mr Hinman has enrolled at A Contact Centre and agrees to facilitate Y and X, or either of them, spending time with the paternal grandmother and or paternal aunt upon their enrolment at that centre and in accordance with the professional supervision requirements of that service.

(B) Mr Hinman agrees to facilitating telephone and electronic communication between Y and X and the paternal family upon the provision by them of an undertaking to the court not to permit the father to participate in or intrude upon any such communication.

(C) Mr Hinman agrees to attend a family dispute resolution service to discuss the progression of Y and X spending time with the paternal family after their completion of eight supervised visits at A Contact Centre and a positive report of their visits, on the basis that all of the costs of supervision, reports and mediation are to be met by the paternal grandmother.

(D) Upon the father’s release from custody, and provided that he has complied with order 10 above, the mother, the father and Mr Hinman would not oppose, on the grounds of Rice v Asplund, a further application for the father to spend time with Y and X.

(E) Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(F) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PARK, TOWN J

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Ratio Decidendi

Legal Principle Established

Established by: PARK, TOWN J

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