Holgar and Stott and Anor - [2018] FamCA 302

FAMILY COURT OF AUSTRALIA

HOLGAR & STOTT AND ANOR

[2018] FamCA 302

FAMILY LAW – REHEARING – Partial remitted hearing – Where issue of father’s time with the child was remitted to the Family Court for rehearing – Where father seeks to spend increasing amounts of time with the child culminating in regular overnight weekend time – Where maternal grandmother seeks no orders as to contact between the father and child, save for the sending of cards and gifts – Where court adopted the trial judge’s findings in relation to the father’s history of violence – Where the father poses a risk of harm to the child in spending time with him – Where the risk outweighs the benefit of a meaningful relationship – Where the maternal grandmother is unable to promote a meaningful relationship between the father and child – Where maternal grandmother’s parenting capacity would be adversely impacted if child were to spend time with the father –Where child’s wishes given weight – Where no orders for time made between father and child – Where father at liberty to send cards and gifts to the child on special days.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC
Evidence Act 1995 (Cth) s140

Stott & Holgar [2017] FamCAFC 152
Holgar & Stott [2017] FamCA 772
Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692
Russell v Close (Unreported, 25 June 1993)
Bayer & Imhoff [2010] FamCA 532
Sedgley & Sedgley (1995) FLC 92-623
Gorman & Huffman [2016] FamCAFC 174

APPLICANT:

Mr Holgar

FIRST RESPONDENT:

No appearance

SECOND RESPONDENT:

Ms Stott

INDEPENDENT CHILDREN’S LAWYER:

Mr Adey

FILE NUMBER:

ADC

2199

2008

DATE DELIVERED:

9 May 2018

PLACE DELIVERED:

Cairns

PLACE HEARD:

Adelaide via video link to Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

28, 29, 30 and 31 August 2017; 1 September 2017 and 11 and 12 December 2017

REPRESENTATION

THE APPLICANT:

In person

THE FIRST RESPONDENT:

No appearance

COUNSEL FOR THE SECOND

RESPONDENT:

Ms Lewis

SOLICITORS FOR THE SECOND

RESPONDENT:

Georgina Parker Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr McQuade

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Norman Waterhouse Lawyers

Orders

The father’s application be dismissed.
The father be at liberty to send cards and gifts to C born in 2006 (“the child”) for Christmas and the child’s birthday and on two other occasions each year with such items to be sent by the father to a post office box address to be provided by the maternal grandmother.
The maternal grandmother shall facilitate the delivery of such items sent by the father pursuant to paragraph 2 hereof to the child provided such items…

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: [2018] FamCA 302
Decision Date: 9 May 2018

CaseChat Overview and Summary

The case of *Holgar and Stott* concerned an application by a father seeking to re-establish contact with his child. The dispute arose in the context of family law proceedings, with the matter being heard by Tree J. The specific nature of the father's original application and the history leading to the current proceedings are not detailed, but the orders indicate a significant breakdown in the father-child relationship and the involvement of the maternal grandmother in managing any residual contact.

The central legal issue before the court was how to best manage the limited and mediated contact between the father and the child, given the circumstances that led to the current application. This involved determining the appropriate scope and method of communication, the role of the maternal grandmother in facilitating this contact, and the future of the Independent Children's Lawyer's involvement. The court was tasked with balancing the father's desire for some form of connection with the child's welfare and the practicalities of the existing family dynamic.

Tree J's reasoning, as reflected in the orders, indicates a decision to significantly restrict direct contact while allowing for a highly mediated form of communication. The court ordered that the father's application be dismissed, but granted him liberty to send cards and gifts to the child on specific occasions, to be sent to a post office box provided by the maternal grandmother. The maternal grandmother was directed to facilitate the delivery of these items, provided they were appropriate for the child, and also to facilitate the child writing to the father if the child expressed a wish to do so. The Independent Children's Lawyer was discharged, and all other pending applications were dismissed, effectively concluding the active litigation.

Orders

Orders of the court

The father’s application be dismissed.

The father be at liberty to send cards and gifts to C born in 2006 (“the child”) for Christmas and the child’s birthday and on two other occasions each year with such items to be sent by the father to a post office box address to be provided by the maternal grandmother.

The maternal grandmother shall facilitate the delivery of such items sent by the father pursuant to paragraph 2 hereof to the child provided such items are appropriate for the child.

The maternal grandmother shall facilitate the child writing to the father or sending cards in the event that the child expresses the wish to do so.

The Independent Children's Lawyer is forthwith discharged with the thanks of the court at the later of the expiration of the appeal period from these orders, or the determination of any appeal that may be brought from them.

Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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