Horner and Horner - [2019] FamCA 410

FAMILY COURT OF AUSTRALIA

HORNER & HORNER

[2019] FamCA 410

FAMILY LAW – CHILDREN – Whether the child should live with the mother or the father – Where family violence – Where ongoing parental conflict – Where both parents have personality vulnerabilities – Where the mother’s household poses a risk that she will deny the child a relationship with the father – Whether the father would facilitate a relationship between the mother and the child if the child was in his care – Where the child’s primary attachment is with the mother – Where a sudden change from the mother to the father’s care guarantee’s the child will suffer loss and grief – Order that the child lives with the mother – Order that the child spend time and communicate with the father as proposed by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CC, 60CA, 60CG, 61DA, 65DAA, 65DAC, 65L, 68B
Evidence Act 1995 (Cth) ss 140

Horner & Horner (No.2) [2017] FamCA 779.

Horner & Horner [2018] FamCA 487
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

Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
K v R (1997) 22 FamLR 592
Re W [2004] FamCA 768

APPLICANT:

Mr Horner

RESPONDENT:

Ms Horner

INDEPENDENT CHILDREN’S LAWYER:

Ms Bassano

FILE NUMBER:

CSC

2016

DATE DELIVERED:

2 July 2019

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

7, 8, 9 and10 August 2017, and 27, 28 and 29 August 2018 in Townsville, 26, 27 28 November and 21 December 2018 in Cairns

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George (2017)
Mr Longworth (2018)

SOLICITORS FOR THE APPLICANT:

Tubaro Lawyers (2017) Somerville Legal (2018)

COUNSEL FOR THE RESPONDENT:

Ms Mayes – 27, 28 and 29 August 2018 and Ms Mc Diarmid – 26, 27, 28 November and 21 December 2018

SOLICITORS FOR THE RESPONDENT:

WGC Lawyers (2018)

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms McMillian QC

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Bassano Law

Orders

Save for the orders appointing a s 65L Supervisor and the Independent Children's Lawyer, all previous parenting orders (including the Airport Watchlist order) be discharged.
Ms Horner (“the mother”) is to have sole parental responsibility for the major long term issues relating to B born … 2014 (“the child”) save that:
(a)She may not change his legal surname or the surname by which he is known;
(b)She may not change where the child lives if that would make the exercise of the rights conferred by these orders on Mr Horner (“the father”) materially more difficult.
The child is to live with the mother.
Unless order 7 applies, the child is to spend time with the father as follows:
(a)During school terms:
(i) Save as provided in order 4(a)(ii), the child is to spend the weekend following 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 Horner and Horner

Details

AGLC: Horner and Horner [2019] FamCA 410
Case: [2019] FamCA 410
Decision Date: 2 July 2019

CaseChat Overview and Summary

The case of Horner and Horner involved a dispute between the mother and father concerning parenting orders for their child. The matter came before Tree J in the Family Court of Australia.

The court was required to determine the extent of parental responsibility for major long-term issues, where the child would live, and the specific arrangements for the child's time with each parent, including provisions for travel and changeovers. Additionally, the court needed to address the process for obtaining and holding the child's passport.

Tree J ordered that the mother have sole parental responsibility for major long-term issues, with specific limitations regarding the child's surname and relocation that would impede the father's contact. The child was ordered to live with the mother, and detailed provisions were made for the child's time with the father, encompassing school terms, holidays, and Christmas periods, with specific arrangements for unaccompanied travel and associated costs. The court also established a protocol for changeovers, including a period of direction by a s 65L consultant, and outlined requirements for interstate and international travel, including passport applications and the holding of passports by the court registry. The Independent Children's Lawyer and the s 65L consultant were to be discharged 12 months from the date of the orders.

Orders

Orders of the court

Save for the orders appointing a s 65L Supervisor and the Independent Children's Lawyer, all previous parenting orders (including the Airport Watchlist order) be discharged.

Ms Horner (“the mother”) is to have sole parental responsibility for the major long term issues relating to B born … 2014 (“the child”) save that:

(a) She may not change his legal surname or the surname by which he is known;

(b) She may not change where the child lives if that would make the exercise of the rights conferred by these orders on Mr Horner (“the father”) materially more difficult.

The child is to live with the mother.

Unless order 7 applies, the child is to spend time with the father as follows:

(a) During school terms:

(i) Save as provided in order 4(a)(ii), the child is to spend the weekend following the conclusion of weeks three, six and eight with the father, from the conclusion of school on the Friday until immediately before the commencement of school on the Monday;

(ii) If there is a public holiday on a Friday or Monday, then in lieu of spending time with the father under order 4(a)(i) on the weekend closest to the public holiday, the child is to instead spend time with the father on the long weekend, from Thursday after school (if Friday is the public holiday), or until Tuesday before school (if Monday is the public holiday);

(b) During the school holidays at the conclusion of terms one, two and three:

(i) unless the parties have agreed otherwise, in 2019, from 9:00am on the Saturday at the end of the first week of the holidays until 5:00pm on the following Friday (being the last Friday of the holidays);

(ii) in 2020 from 9:00am on the Saturday after school concludes until 5:00pm on the following Saturday (being the middle Saturday of the holidays);

(iii) in 2021 and each alternate year thereafter, from 9:00am on the Saturday following the conclusion of school for that term until 5:00pm on the Sunday before school resumes.

(i) in 2019 for two eight day periods being from 15 December 2019 at 9:00am until 23 December 2019 at 5:00pm and from 11 January 2020 at 9:00am until 19 January 2020 at 5:00pm;

(ii) in 2020 for a 10 day period commencing from 17 December 2020 at 9:00am until 27 December 2020 at 5:00pm and a further seven day period from 10 January 2021 at 9:00am until 17 January 2021 at 5:00pm;

(iii) in 2021 and each alternate year thereafter from 5 January at 9:00am until 19 January at 5:00pm;

(iv) in 2022 and each alternate year thereafter from 15 December at 9:00am until 15 January at 5:00pm.

Changeovers that are not undertaken at the child’s school, are to occur as follows:

(a) For the next 12 months, as may be directed by the s 65L consultant, but absent direction, as provided hereafter in orders 5(b) and (c);

(b) Thereafter, if the father has advised the mother that he intends that the child spend time with him under these orders other than in C Town (or if the mother relocates, such place as she may be residing) and the child is flying unaccompanied, then changeovers will take place at C Town Airport (or the airport closest to where the mother may be residing) and are to be effected by the mother ensuring the child boards his flight;

(c) Otherwise changeovers are to occur at McDonald’s T Street, C Town, (or if she relocates from C Town, such McDonalds closest to where the mother may be residing).

The child is only permitted to fly unaccompanied once he has travelled accompanied on no less than 10 occasions.

If the child flying as an unaccompanied minor, then the child’s time with the father under order 4 is to commence from the time of his departing flight (to be no earlier than 9:00am) and conclude at the time of arrival in C Town (or other city where the mother may be residing) of the return flight (to be no later than 5:00pm).

The father is responsible for the child’s travel costs to spend time with him, and the mother is responsible for the return airfare. The father is responsible for the travel costs of any person accompanying the child.

In the event the father does not intend to spend time with the child under these orders, he is to provide no less than 14 days written notice of that to the mother, and until their discharge, the Independent Children's Lawyer and the s 65L consultant.

10.

If either parent wishes to take the child out of the State of Queensland for the purpose of a holiday, that parent shall provide a written itinerary at least 14 days prior to the proposed travel to the other parent.

11.

If a parent wishes to take the child out of the Commonwealth of Australia for the purpose of a holiday, such time is to only occur during the period the child is living or spending time with the travelling parent, who shall notify the other parent at least 60 days prior to the proposed travel. The travelling parent will provide to the other parent a written itinerary 35 days prior to the proposed travel, to include:

(a) The date the child will be leaving;

(b) The date the child will be returning;

(d) The mode of transport (including arrival times and flight numbers); and

(e) A contact number for the place where the child will be staying each night the child is away.

12.

Within seven days of a written request by either parent, the other parent will execute a passport application and will do all things necessary to direct and authorise the Department of Foreign Affairs and Trade, to issue a passport for the child when requested to do so by the other party.

13.

In the event that the other parent fails to do all things necessary and sign all such necessary documents, the Department of Foreign Affairs and Trade is hereby requested to issue a passport for the child notwithstanding that a party has not provided his/her consent to the issue of the passports.

14.

At any time the child’s passport is due for renewal, each parent will execute a passport application when requested to do so and each will do all acts and things necessary to direct and authorise the Australian Passport Office and/or the Department of Foreign Affairs and Trade to issue a passport to the child within thirty days of receipt of the renewal notice.

15.

In the event that either party fails to do all acts and things necessary and sign all such necessary documents to enable the passport to issue for the child, the Australian Passport Office and/or the Department of Foreign Affairs and Trade is authorised to issue the passports for the child, notwithstanding that the other party has not given his/her consent to the issue of passport or failed to sign the relevant documents.

16.

Upon a passport being issued in the names of the child, the parent who receives the passport or passports will deliver it to the Registrar of the Family Court of Australia (or such name the Court may be known as from time to time) to be held by the Registry.

17.

When either parent seeks to travel overseas with the child, the parties are to do all acts and things and sign all necessary documents to cause the release of the child’s passport or passports to the travelling parent as requested by the travelling parent but no later than thirty days before the expected date for travel.

18.

The mother and father are able to, upon request to the Registry holding the child’s passports, inspect the child’s passport at such dates and times as allocated by the Family Court of Australia (or such name the Court may be known as from time to time).

19.

The Independent Children's Lawyer is discharged 12 months from the date of these orders.

20.

The s 65L consultant is discharged 12 months from the date of these orders.

21.

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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