HOGAN & LEEDS - [2010] FamCA 1142

FAMILY COURT OF AUSTRALIA

HOGAN & LEEDS

[2010] FamCA 1142

FAMILY LAW – CHILDREN – Final parenting orders – Property Settlement – Where there is a history of family violence – Where there are allegations that the mother fails to provide for the children’s basic needs – Where the parties’ geographical location is an issue

APPLICANT:

Mr Hogan

RESPONDENT:

Ms Leeds

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

554

2008

DATE DELIVERED:

17 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

12, 13 & 14 July 2010 & 8 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Andrew

SOLICITOR FOR THE APPLICANT:

Harrington Family Lawyers of Brisbane

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McAuley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The children A born … December 2003 and Z born … April 2008 live with the father
The children spend time with the mother from 5.30pm on Friday until 6.00pm on Sunday for three weekends out of four.
For the purposes of the mother spending time with the children:
(a) Should the mother remain in the R area the mother is to collect the children from the father’s residence at the commencement of contact and return the children to the father’s residence at the conclusion of contact;
(b) Should the mother reside within 25 kilometres of the father’s residence the mother is to collect the children from the father’s residence at the commencement of contact and the father is to collect the children from the mother’s residence at the conclusion of contact.
Pursuant to Order 1 above the children are to be handed to the father by the mother at 4.00pm on Friday 24 December 2010 at Y Contact Centre.
The time the mother spends with the children is to commence at 4.00pm on Friday, 31 December 2010.
The parties must keep each other informed as to:
(a) their residential address and landline telephone number;
(b) any medical condition, significant health issue or illness concerning the child.
The father must keep the mother informed as to the name and address of the child’s school or schools and any treating medical or dental practitioners and authorise each of them to provide to the father such reports and other information as he may seek in writing from any such school or practitioner, at her cost, provided that this order is sufficient authority for that purpose without further authorisation by the father.
The mother and the father are restrained and an injunction is granted restraining them from denigrating the other parent or the other parent’s family to the children or in the presence of the children or allowing any other person to do so.
The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Hogan & Leeds approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC…

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

AGLC: HOGAN & LEEDS [2010] FamCA 1142
Case: [2010] FamCA 1142
Decision Date: 17 December 2010

CaseChat Overview and Summary

Bell J considered a dispute between a father and mother concerning the living arrangements and time spent with their two children, A and Z. The court's orders addressed the primary residence of the children, the schedule for the mother's time with them, and specific arrangements for the commencement and conclusion of that time, which varied depending on the mother's residential location.

The court was required to determine the appropriate orders for the children's residence and the nature and extent of the time the mother would spend with them. Further issues included the practical arrangements for the transfer of the children, the exchange of information between the parents regarding the children's welfare and education, and the prevention of disparaging remarks about a parent in the children's presence. The court also considered the role of the Independent Children's Lawyer.

The court ordered that the children live with the father and spend time with the mother on three weekends out of four. The specific arrangements for collecting and returning the children were contingent on the mother's proximity to the father's residence. The court also mandated ongoing communication between the parents regarding their addresses, contact details, and the children's health. Crucially, an injunction was granted restraining both parents from denigrating the other parent or their family in the presence of the children. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

The children A born … December 2003 and Z born … April 2008 live with the father

The children spend time with the mother from 5.30pm on Friday until 6.00pm on Sunday for three weekends out of four.

For the purposes of the mother spending time with the children:

(a) Should the mother remain in the R area the mother is to collect the children from the father’s residence at the commencement of contact and return the children to the father’s residence at the conclusion of contact;

(b) Should the mother reside within 25 kilometres of the father’s residence the mother is to collect the children from the father’s residence at the commencement of contact and the father is to collect the children from the mother’s residence at the conclusion of contact.

Pursuant to Order 1 above the children are to be handed to the father by the mother at 4.00pm on Friday 24 December 2010 at Y Contact Centre.

The time the mother spends with the children is to commence at 4.00pm on Friday, 31 December 2010.

The parties must keep each other informed as to:

(a) their residential address and landline telephone number;

(b) any medical condition, significant health issue or illness concerning the child.

The father must keep the mother informed as to the name and address of the child’s school or schools and any treating medical or dental practitioners and authorise each of them to provide to the father such reports and other information as he may seek in writing from any such school or practitioner, at her cost, provided that this order is sufficient authority for that purpose without further authorisation by the father.

The mother and the father are restrained and an injunction is granted restraining them from denigrating the other parent or the other parent’s family to the children or in the presence of the children or allowing any other person to do so.

The Independent Children’s Lawyer be discharged.

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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