Holgar and Stott and Anor - [2016] FamCA 632

FAMILY COURT OF AUSTRALIA

HOLGAR & STOTT AND ANOR

[2016] FamCA 632

FAMILY LAW - CHILDREN – final orders – where the father seeks parenting orders – where the orders are opposed by the maternal grandmother – where the mother has a limited right of appearance and supports the position of the maternal grandmother – where there are allegations of family violence – where consideration is given to the principles relevant to parenting orders – where it is ordered that the grandmother have sole parental responsibility and that the child live with her – where the child is to spend time with the father on a gradually increasing basis provided he engages in counselling and therapy in respect of matters of family violence.

Family Law Act 1975 (Cth) s 4AB, 60 CA, 60B, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT

Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Champness & Hansen (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Loddington & Derringford (No 2) [2008] FamCA 925
Maluka & Maluka (2011) FLC 93-464
MRR v GR (2010) 240 CLR 461
Sigley & Evor [2011] FamCAFC 22
Soulos & Sorbo [2015] FamCA 196

APPLICANT:

Mr Holgar

1st RESPONDENT:

Ms B Stott

2nd RESPONDENT:

Ms Stott

INDEPENDENT CHILDREN’S LAWYER:

Norman Waterhouse Lawyers

FILE NUMBER:

ADC

2199

2008

DATE DELIVERED:

5 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

15, 16, 17, 21, 22, 23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE 1ST RESPONDENT:

Litigant in Person

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENT:

Ms Lewis

SOLICITOR FOR THE 2ND RESPONDENT:

Georgina Parker Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McQuade

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman Waterhouse Lawyers

Orders

That the maternal grandmother have sole parental responsibility for C born … 2006 (“the child”).
That the child live with the maternal grandmother.
That the child spend time with the mother upon such terms and conditions as may be agreed between the maternal grandmother and the mother.
That the child spend time with the father as follows:-
(a) From 10 am to 4 pm each alternate Saturday;
(b)As and from 15 November 2017 from 10 am Saturday to 4 pm Sunday each alternate weekend;
(c) From 3 pm to 5 pm on Christmas Day in 2016;
(d)From 6 pm on Christmas Eve to 10 am on Christmas Day in 2017 and in each alternate year thereafter;
(e)From 6 pm on Christmas Day to 4 pm on Boxing Day in 2018 and each alternate year thereafter.
That the father be restrained and an injunction granted restraining him from:-
(a)       Attending at the child’s school;
(b)       Attending at or in the vicinity of the home of the maternal grandmother;
(c)Telephoning, texting or otherwise communicating with the maternal grandmother EXCEPT by email;
(d)       Approaching or remaining in the vicinity of the maternal grandmother.
That in respect of education…

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: [2016] FamCA 632
Decision Date: 5 August 2016

CaseChat Overview and Summary

In the matter of Holgar and Stott, Berman J of the Family Court of Australia determined the parenting arrangements for a child born in 2006. The dispute concerned the primary care and responsibilities for the child, involving the child's mother, father, and maternal grandmother. The court was tasked with establishing orders that would best serve the child's welfare and interests, considering the complex family dynamics presented.

The central legal issues before the court were: who should have sole parental responsibility for the child; where the child should live; the terms of the child's time spent with each parent; and the extent to which the father should be restrained from certain actions and communications. Additionally, the court needed to determine how decisions regarding the child's education and health would be made, and whether specific conditions should be imposed on the father's time with the child.

Berman J applied the paramount principle that the best interests of the child are the primary consideration in all parenting matters. The court's reasoning led to orders granting the maternal grandmother sole parental responsibility and the child living with her. The father's time with the child was significantly restricted and made conditional upon him undertaking counselling for family violence issues. Injunctions were also granted to restrain the father from attending the child's school, approaching the maternal grandmother's home, and denigrating the mother or grandmother in the child's presence. The court also established a framework for shared information regarding the child's education and health, with the maternal grandmother having the final decision-making power if agreement could not be reached with the mother.

Orders

Orders of the court

That the maternal grandmother have sole parental responsibility for C born … 2006 (“the child”).

That the child live with the maternal grandmother.

That the child spend time with the mother upon such terms and conditions as may be agreed between the maternal grandmother and the mother.

That the child spend time with the father as follows:-

(a) From 10 am to 4 pm each alternate Saturday;

(b) As and from 15 November 2017 from 10 am Saturday to 4 pm Sunday each alternate weekend;

(d) From 6 pm on Christmas Eve to 10 am on Christmas Day in 2017 and in each alternate year thereafter;

(e) From 6 pm on Christmas Day to 4 pm on Boxing Day in 2018 and each alternate year thereafter.

That the father be restrained and an injunction granted restraining him from:-

(a) Attending at the child’s school;

(b) Attending at or in the vicinity of the home of the maternal grandmother;

(d) Approaching or remaining in the vicinity of the maternal grandmother.

That in respect of education and health issues affecting the child, the maternal grandmother will advise the mother of same and provide her views about any major issues affecting the child’s education and health and shall consult with the mother about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between them THEN the maternal grandmother shall make the final decision and advise the mother of that decision.

That the mother and the father be authorised to receive direct from the child’s school (at their separate expense) information regarding the child’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.

That the maternal grandmother will keep the mother and the father advised of the name and address of the child’s treating medical practitioner and any changes thereto and shall advise each of them in writing of any hospital admission in respect of the child.

That the father is restrained and an injunction granted restraining him from denigrating the maternal grandmother or the mother in the presence or hearing of the child and from preventing any other person to do so in the presence or hearing of the child.

10.

That the operation of paragraph (4)(b),(d) and (e) of these orders is conditional upon the father undertaking and completing a successful course of counselling and therapy with Mr G or such other like or approved organisation or service in respect of matters of family violence and for that purpose a copy of these reasons can be provided to the counsellor, therapist or clinician.

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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