Hocking and Fisk - [2017] FCCA 3226

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOCKING & FISK

[2017] FCCA 3226

Catchwords:
FAMILY LAW – Parenting – undefended hearing.

Legislation:

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

Cases cited:

Banks & Banks (2015) FLC 93-637

Goode v Goode (2007) 36 FamLR 422
Howard & Howard [2016] FamCA 455
McCall & Clark [2009] CAFC 92
MRR & GR [2010] HCA 4
Starr & Dugan [2009] CAFC 115

Applicant:

MR HOCKING

Respondent:

MS FISK

File Number:

PAC 4654 of 2013

Judgment of:

Judge Obradovic

Hearing date:

27 October 2017

Date of Last Submission:

27 October 2017

Delivered at:

Parramatta

Delivered on:

22 December 2017

REPRESENTATION

Appearing for the Applicant:

Mr Frost

Solicitors for the Applicant:

Horizons Family Law Centre Pty Ltd

Appearing for the Respondent:

No appearance

ORDERS

The father have sole parental responsibility for X born (omitted) 2008 and Y born (omitted) 2011.
The children live with the father.
The children shall spend time with the mother as agreed in writing between the parents.
Each parent is to permit and assist the children to contact the other parent by telephone at any time the children express a wish to speak with the other parent.
The father is permitted to travel with the children or either of them outside of the Commonwealth of Australia provided he gives 28 days’ prior written notice to the mother.
Until further order, or else subject to the authenticated consent of the father, Mr Hocking, the mother, Ms Fisk born (omitted) 1979 her servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children X born (omitted) 2008 and Y born (omitted) 2011 from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist, until the Court orders its removal, or with consent of the father.
Each parent is to keep the other informed of:
(a)Their residential address;
(b)Their mobile telephone number;
(c)A contact email address;
(d)Any significant injury or illness suffered by the children and details of all medical treatment given to the children; and
(e)All school, extra-curricular and sporting activities in which the children are involved.
The parents are to communicate about matters referred to in the preceding order, and/or any other matters relating to the children, by text message or email between the mother and the mother.
The mother is restrained by injunction from attending at or going within 500 metres of the children’s school.
Each parent is restrained by injunction from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of the children and both parents shall use their best endeavours to ensure that no third party denigrates the other parent and/or…

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 Hocking and Fisk

Details

AGLC: Hocking and Fisk [2017] FCCA 3226
Case: [2017] FCCA 3226
Decision Date: 22 December 2017

CaseChat Overview and Summary

This matter concerned an application before Judge Obradovic in the Federal Circuit and Family Court of Australia, involving Mr Hocking (the father) and Ms Fisk (the mother) regarding their two children. The dispute centred on parenting arrangements, including the children's residence, parental responsibility, and the mother's ability to remove the children from Australia.

The court was required to determine the most appropriate parenting orders for the children, specifically addressing issues of sole parental responsibility, the children's living arrangements, contact between the children and the mother, and the father's ability to travel internationally with the children. Crucially, the court also had to consider whether to grant an injunction restraining the mother from removing the children from the Commonwealth of Australia and whether to place the children on the Family Law Watchlist. Further issues included the exchange of personal and medical information, communication protocols between the parents, and injunctions preventing denigration of a parent and the mother attending the children's school.

In reaching its decision, the court made orders granting the father sole parental responsibility and determining that the children would live with him. The children were to spend time with the mother as agreed in writing, and both parents were to facilitate telephone contact. The father was permitted to travel overseas with the children upon providing 28 days' notice. Significantly, the mother was restrained from removing the children from Australia, and their names were to be placed on the Family Law Watchlist. The court also made orders regarding the exchange of information, communication methods, and injunctions restraining denigration of either parent and prohibiting the mother from attending the children's school.

Orders

Orders of the court

The father have sole parental responsibility for X born (omitted) 2008 and Y born (omitted) 2011.

The children live with the father.

The children shall spend time with the mother as agreed in writing between the parents.

Each parent is to permit and assist the children to contact the other parent by telephone at any time the children express a wish to speak with the other parent.

The father is permitted to travel with the children or either of them outside of the Commonwealth of Australia provided he gives 28 days’ prior written notice to the mother.

Until further order, or else subject to the authenticated consent of the father, Mr Hocking, the mother, Ms Fisk born (omitted) 1979 her servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children X born (omitted) 2008 and Y born (omitted) 2011 from the Commonwealth of Australia.

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist, until the Court orders its removal, or with consent of the father.

Each parent is to keep the other informed of:

(a) Their residential address;

(b) Their mobile telephone number;

(d) Any significant injury or illness suffered by the children and details of all medical treatment given to the children; and

(e) All school, extra-curricular and sporting activities in which the children are involved.

The parents are to communicate about matters referred to in the preceding order, and/or any other matters relating to the children, by text message or email between the mother and the mother.

10.

The mother is restrained by injunction from attending at or going within 500 metres of the children’s school.

11.

Each parent is restrained by injunction from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of the children and both parents shall use their best endeavours to ensure that no third party denigrates the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.

12.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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