HIRST & HEARNS - [2015] FamCA 229

FAMILY COURT OF AUSTRALIA

HIRST & HEARNS

[2015] FamCA 229

FAMILY LAW – Parenting – Further final orders – best interests principles where evidence of parents (as self-represented litigants) is limited.

Family Law Act 1975 (Cth)

Carriel and Lendrum [2015] FamCAFC 43
Marsden v Winch [2009] FamCAFC 152
Prewett and Mann [2013] FamCAFC 130
Rice and Asplund (1979) FLC 90-725

APPLICANT:

Mr Hirst

RESPONDENT:

Ms Hearns

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

10526

2009

DATE DELIVERED:

1 April 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

24 and 25 March 2015

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kenna Teasdale Lawyers

Orders

ORDERS OF THE COURT

All previous parenting orders are discharged.
The mother have sole parental responsibility for all major long-term decisions needed to be made in relation to B born … 2005 and C born .. 2008 but the mother advise the father of all such decisions.
That as and from the conclusion of the school holidays at the end of term 1 in 2015, B and C live with the mother.
The B and C spend time with the father as follows:
(a)During school terms, every third weekend from 7 pm (or as close as possible to that time as can be accommodated by the railway timetable) on the Friday to 7 pm on the Sunday; and
(b)In all school term holidays, unless the parties agree on different times, from 7 pm on the day school breaks up until 7 pm on the middle Saturday of those holidays; and
(c)On an alternating basis during the long Summer holidays, for one half, unless the parties agree on different times, from 7 pm on the day school breaks up for the holidays which commence in all odd- numbered years until 7 pm at the half way point and during the holidays that commence in all even-numbered years from 7 pm on the half way point until 7 pm on the day that concludes the second half; and
(d)and the father shall also communicate with the children by telephone on each Tuesday and Thursday at 6.00 pm with the mother ensuring the children are both able to take the father’s call precisely at that time.
That for the avoidance of doubt:
(a)In respect of 4(a), (b) and (c), the father shall collect the children from the mother at the F Town Railway Station on the Friday and the father shall return the children to the mother at the Southern Cross Station on the Sunday;
(b)Paragraph 4 (a) is suspended during all school holidays and shall resume on the third weekend of each term); and
(c)The parties each have permission of the Court to produce a copy of these orders to all schools, health providers, police or other courts for the purposes of carrying into effect the terms of these orders.

ORDERS OF THE COURT BUT MADE AT…

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 HIRST & HEARNS

Details

AGLC: HIRST & HEARNS [2015] FamCA 229
Case: [2015] FamCA 229
Decision Date: 1 April 2015

CaseChat Overview and Summary

The case of Hirst & Hearns involved parenting orders made by Cronin J in the Federal Circuit and Family Court of Australia. The dispute concerned the arrangements for two children, B and C, born in 2005 and 2008 respectively.

The court was required to determine the terms of parenting orders, including the allocation of parental responsibility for major long-term decisions, the living arrangements for the children, the time the children would spend with each parent, and communication protocols. Additionally, the court addressed specific entitlements and restrictions for each parent, as well as the discharge of the Independent Children's Lawyer.

Cronin J made orders discharging all previous parenting orders. The mother was granted sole parental responsibility for major long-term decisions, with an obligation to advise the father of such decisions. The children were ordered to live with the mother from the conclusion of the school holidays at the end of term 1 in 2015. Specific time arrangements were detailed for the father, including every third weekend during school terms, specific periods during school holidays, and alternating long summer holidays. Communication by telephone on Tuesdays and Thursdays was also mandated. The court also included provisions for the father's involvement in educational matters, requiring him to be kept informed and listed as a parent and emergency contact, with the school principal retaining prerogative over implementation. Further orders included injunctions restraining denigration of the other parent, discussion of proceedings with the children, physical discipline, use of illegal substances, excessive alcohol consumption when caring for the children, and unsafe car travel.

The court ordered the discharge of the Independent Children's Lawyer and dismissed all outstanding applications, save for issues of costs. The orders also incorporated a Fact Sheet detailing the obligations, consequences of contravention, and sources of assistance for compliance, pursuant to sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

ORDERS OF THE COURT

All previous parenting orders are discharged.

The mother have sole parental responsibility for all major long-term decisions needed to be made in relation to B born … 2005 and C born .. 2008 but the mother advise the father of all such decisions.

That as and from the conclusion of the school holidays at the end of term 1 in 2015, B and C live with the mother.

The B and C spend time with the father as follows:

(a) During school terms, every third weekend from 7 pm (or as close as possible to that time as can be accommodated by the railway timetable) on the Friday to 7 pm on the Sunday; and

(b) In all school term holidays, unless the parties agree on different times, from 7 pm on the day school breaks up until 7 pm on the middle Saturday of those holidays; and

(c) On an alternating basis during the long Summer holidays, for one half, unless the parties agree on different times, from 7 pm on the day school breaks up for the holidays which commence in all odd- numbered years until 7 pm at the half way point and during the holidays that commence in all even-numbered years from 7 pm on the half way point until 7 pm on the day that concludes the second half; and

(d) and the father shall also communicate with the children by telephone on each Tuesday and Thursday at 6.00 pm with the mother ensuring the children are both able to take the father’s call precisely at that time.

That for the avoidance of doubt:

(a) In respect of 4(a), (b) and (c), the father shall collect the children from the mother at the F Town Railway Station on the Friday and the father shall return the children to the mother at the Southern Cross Station on the Sunday;

(b) Paragraph 4 (a) is suspended during all school holidays and shall resume on the third weekend of each term); and

(c) The parties each have permission of the Court to produce a copy of these orders to all schools, health providers, police or other courts for the purposes of carrying into effect the terms of these orders.

ORDERS OF THE COURT BUT MADE AT THE REQUEST OF, AND BY AGREEMENT OF, THE PARTIES:

Notwithstanding Paragraph 2:

(a) If either child becomes seriously ill or seriously injured and in either case, requires medical treatment, the parent with the care of that child shall immediately notify the other of the details including details of the medical treatment and permit attendance by that other parent on that child and the relevant medical practitioner; and

(b) In respect of education, the father shall be and be entitled to be:

(i) kept informed of all school enrolment details;

(ii) recorded on the school’s data base as a parent and as an emergency contact;

(iii) receive all information that a parent would normally receive;

(iv) attend all meetings, events and functions that parents would normally be entitled to attend,

Noting at all times that the implementation of these entitlements shall always remain the prerogative of the Principal of the children’s School.

The parties may spend other time with B and C by agreement.

Each parent keep the other informed of any change of residential address or telephone number.

Notwithstanding paragraph 4, the father shall have B and C in his care on Father’s Day and the Mother shall have B and C in her care on Mother’s Day and appropriate arrangements shall made between the parties for substitute days.

10.

The father and the mother are restrained by injunction from:

(a) denigrating the other within children’s hearing or permitting any person to do so;

(b) discussing the proceedings or engaging in adult conversations with the children;

(d) using illegal substances;

(e) consuming alcohol to excess when having the care of the children;

(f) travelling with the children in a car without proper restraints.

AND IT IS FURTHER ORDERED BY THE COURT:

11.

The Independent Children’s Lawyer is discharged from the proceedings.

12.

Save as to issues of costs, all outstanding applications are otherwise dismissed.

13.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

14.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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