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Hoffman & Hoffman

Hoffman & Hoffman

Case [2023] FedCFamC2F 979 9 August 2023

Parental Responsibility

Jurisdiction

Best Interests of the Child

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoffman & Hoffman [2023] FedCFamC2F 979

File number(s): MLC 2840 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 9 August 2023

Catchwords: FAMILY LAW – parenting – where one parent unilaterally relocated interstate with two pre-school children two years ago – consistent road blocks from intense parental conflict - demonstrated inability to promote a meaningful relationship with the other parent in the interim – repeated unilateral acts of non-compliance with interim Orders – parenting capacity impaired in prioritising children’s emotional needs - change of residence – children to return to live with father – regularised time with mother if remains interstate – best interests of children

Legislation: Family Law Act 1975 (Cth)

Cases cited:
AMS v AIF [1999] HCA 26

Berys & Berys [2022] FedCFamC2F 1162

Bielen & Kozma [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Eastley & Eastley [2022] FedCFamC1F 101

Fairfield & Hoffman [2021] FamCAFC 151; (2021) FLC 94-045

Godfrey & Sanders [2007] FamCA 102

Hepburn & Noble [2010] FamCAFC 111

Isles & Nelissen [2022] FedCFamC1A 97

Koen & Biondi [2023] FedCFamC1A 89

Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554

Mazorski & Albright [2007] FamCA 520

MRR v GRR (2010) 240 CLR 461

Napier & Hepburn [2006] FamCA 1316

Russell & Close [1993] FamCA 62

Sayer & Radcliffe (2012) 48 Fam LR 298

Starr & Duggan [2009] FamCAFC 115

Sweet & Sweet [2022] FedCFamC2F 676

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 2 Family Law

Number of paragraphs: 179

Date of hearing: 17-19 July 2023

Place: Heard in Forster; delivered in Newcastle

Counsel for the Applicant: Ms Van Oosterom

Solicitor for the Applicant: Pearce Webster Dugdales

Counsel for the Respondent: Ms Court

Solicitor for the Respondent: Greg Tyler & Associates

Solicitor for the Independent Children's Lawyer: Ms McGregor (Solicitor Advocate) McGregor Family Law
ORDERS

MLC 2840 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOFFMAN

Applicant

AND:
MS HOFFMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

9 AUGUST 2023

Order amended on 10 August 2023 pursuant to sub-rule 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021)
THE COURT ORDERS THAT:
All previous parenting orders are discharged.
Parental Responsibility
The applicant, Mr Hoffman (‘the father’) shall have sole parental responsibility for X born in 2016 and Y born in 2018 (‘the children’) PROVIDED THAT:
(a)the father shall notify the respondent, Ms Hoffman (‘the mother’), in writing of any major long-term decisions for the children at least 14 days’ prior to the decision being made;
(b)the mother will be at liberty to give feedback to the father in writing about the proposed decision; provided such feedback is received at least seven (7) days before the decision is to be made; and
(c)the father will inform the mother in writing of the decision made as soon as practicable afterwards.

Lives with the father
The…

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 Hoffman & Hoffman

Details

AGLC: Hoffman & Hoffman [2023] FedCFamC2F 979
Case: [2023] FedCFamC2F 979
Decision Date

CaseChat Overview and Summary

Hoffman & Hoffman was a parenting case heard in the Federal Circuit and Family Court of Australia. The case involved a dispute between the parents of two young girls over their care, residence, and time-sharing arrangements. The mother had relocated with the children to New South Wales, and the father sought for the children to live with him in Victoria, with the mother having regulated time with them. The Independent Children's Lawyer supported the father's application. The primary issue before the Court was whether the mother posed an unacceptable risk of psychological harm to the children by her inability to promote a meaningful relationship between them and their father. The Court found that the mother's behaviour, including her unilateral decisions, conflicts with court orders, and failure to recognise the impact of her actions on the children, demonstrated a risk of harm to the children. The Court determined that the best interests of the children would be served by them living with their father in Victoria, with regulated time with their mother. The Court made various orders to protect the children's welfare, including prohibiting the mother from relocating the children without the father's consent, and imposing positive and prohibitive restraints on the mother's behaviour. The Court also ordered that the father have sole parental responsibility for the children, with the mother having the opportunity to provide feedback on major long-term decisions. The Court dismissed an application for the father to pay half of the Independent Children's Lawyer's costs, finding that it would cause him financial hardship.

Orders