HORNER & HORNER - [2017] FamCA 779

FAMILY COURT OF AUSTRALIA

HORNER & HORNER

[2017] FamCA 779

FAMILY LAW – CHILDREN – Interim Orders – Where father initially sought child to move into his primary care and spend time with mother – where mother sought child live with her and spend no time with father until child was 12 years of age – where both parties’ positions substantially changed during the trial – where issues needing determination markedly narrowed – where all parties conceded that trial could not conclude with final orders – where father has only spent limited time with child since separation - where parties agreed on interim orders pending delivery of judgment – where interim orders made for child to live with mother and spend increasing amounts of time with father culminating in overnight time – where mother to have sole parental responsibility – where s65L consultant to supervise changeovers - where child is prohibited from travelling outside of Australia at this point in time - where matter is to be relisted in July 2018.

Family Law Act 1975 (Cth) ss 4, 4A, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) s 140

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431

APPLICANT:

Mr Horner

RESPONDENT:

Ms Horner

INDEPENDENT CHILDREN’S LAWYER:

Ms Bassano

FILE NUMBER:

CSC

2016

DATE DELIVERED:

21September 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

7, 8, 9 and 10 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITORS FOR THE APPLICANT:

KLM Solicitors

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Ms McMillian QC

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Bassano Law

Orders

UNTIL FURTHER ORDER IT IS ORDERED THAT:
Discharge of prior orders

Save for the following orders, all prior parenting Orders are forthwith discharged:
(a)Orders 1, 6 and 7 of the Orders of Judge Purdon-Sully made 15 March 2016 (appointing and Independent Children's Lawyer, and providing for restraint on international travel and the placing of B, born … 2014 (“the child”) on the Airport Watch List);
(b)Order 3(a) of the Orders of the Honourable Justice Tree made 5 July 2017 (dealing with the appointment of the s 65L supervisor); and
(c)The Orders of the Honourable Justice Tree made 10 August 2017 (providing for the child to spend unsupervised time with the father).

Parental responsibility

The mother have sole parental responsibility for the child.

Child’s living arrangements

The child is to live with the mother.

Child’s time with father and his family

The child is to spend time with the father as follows:
(a)Until 25 and 26 October 2017, on each alternate Wednesday and Thursday as provided for by Order 1 of the Orders of 10 August 2017;
(b)Commencing on 25 and 26 October 2017, and conditional upon the father having spent at least four fortnightly times with the child as provided for in Order 1 of the Orders made 10…

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 & HORNER

Details

AGLC: HORNER & HORNER [2017] FamCA 779
Case: [2017] FamCA 779
Decision Date: 21 September 2017

CaseChat Overview and Summary

In the matter of *Horner & Horner*, Tree J of the Family Court of Australia made orders concerning the parenting arrangements for a child born in 2014. The proceedings involved the mother and father of the child, with an Independent Children's Lawyer also appointed. The dispute centred on the parental responsibility, living arrangements, and time the child would spend with each parent, as well as communication protocols between the parents and with the child.

The court was required to determine the extent to which prior parenting orders should be discharged, who should have sole parental responsibility for the child, and where the child should live. Further issues included the specific arrangements for the child's time with the father and his family, including the progression of unsupervised time and the location of changeovers. The court also had to consider provisions for communication between the father and the child, and between the parents themselves, as well as the disclosure of information regarding the child's education and healthcare.

Tree J ordered the discharge of most prior parenting orders, save for those relating to the appointment of an Independent Children's Lawyer, restraint on international travel, the Airport Watch List, the appointment of a supervisor for time with the father, and the provision for unsupervised time with the father. The mother was granted sole parental responsibility, and the child was ordered to live with her. The orders then detailed a phased approach to the child spending time with the father, commencing with supervised time and gradually increasing to unsupervised overnight stays, with specific conditions and timelines for each phase. Provisions were also made for the child's birthday and Boxing Day, and for communication between the father and child via Skype, with strict limitations on the topics of discussion. The parents were directed to communicate only by phone in emergencies and to use a designated online program for other communication, with specific requirements for information sharing regarding the child's welfare and education.

Orders

Orders of the court

UNTIL FURTHER ORDER IT IS ORDERED THAT:

Discharge of prior orders

Save for the following orders, all prior parenting Orders are forthwith discharged:

(a) Orders 1, 6 and 7 of the Orders of Judge Purdon-Sully made 15 March 2016 (appointing and Independent Children's Lawyer, and providing for restraint on international travel and the placing of B, born … 2014 (“the child”) on the Airport Watch List);

(b) Order 3(a) of the Orders of the Honourable Justice Tree made 5 July 2017 (dealing with the appointment of the s 65L supervisor); and

(c) The Orders of the Honourable Justice Tree made 10 August 2017 (providing for the child to spend unsupervised time with the father).

Parental responsibility

The mother have sole parental responsibility for the child.

Child’s living arrangements

The child is to live with the mother.

Child’s time with father and his family

The child is to spend time with the father as follows:

(a) Until 25 and 26 October 2017, on each alternate Wednesday and Thursday as provided for by Order 1 of the Orders of 10 August 2017;

(b) Commencing on 25 and 26 October 2017, and conditional upon the father having spent at least four fortnightly times with the child as provided for in Order 1 of the Orders made 10 August 2017, then from 11:00am until 4:00pm on each of those days, and on the Wednesday and Thursday of each alternate week thereafter;

(c) Commencing on 10 and 11 January 2018, and conditional upon the father having spent at least four fortnightly times with the child as stated in Order 4(b) hereof, then from 9:00am until 5:00pm on each of those days, and on the Wednesday and Thursday of each alternate week thereafter;

(d) Commencing on 25 April 2018, and conditional upon the father having spent at least eight fortnightly times with the child pursuant to Order 4(c) hereof, then from 9:00am on 25 April 2018 until 4:00pm on 26 April 2018, and from 9:00am Wednesday until 5:00pm Thursday of each alternate week thereafter.

If the child is not otherwise due to spend time with the father on the child’s birthday, then he is to spend time with the father on that day from 9:00am until 2:00pm.

The child is to spend time with the father on Boxing Day from 9:00am until 5:00pm.

For the purposes of the child spending time with the father pursuant to these Orders, the child’s time with the father is to occur in C Town unless otherwise stated in these Orders.

The father is to bear his cost of travel to and from C Town.

Changeovers are to occur with the assistance of the s 65L consultant or her nominee, at the Family Court of Australia’s Registry in C Town, or if the day is on a weekend, at a place of her nomination, unless otherwise provided for in these orders.

10.

In the event the father does not intend to travel to C Town to spend time with the child pursuant to these orders, he is to provide to the mother, the Independent Children's Lawyer and the s 65 L consultant at least 7 days notification of his inability to travel to spend time with the child.

11.

Any member of the child’s paternal family other than the father, may spend time with the child other than as provided for in these orders, at times and places, as may be agreed between them and the mother from time to time.

12.

Between 1 February 2018 and 1 June 2018, at the mother’s cost, the child is to travel to Brisbane with the mother for a period of up to six consecutive nights, and the child is to spend time with the father at least from 9:00am until 5:00pm on 4 occasions within that period, with such time being on at least two consecutive days. Changeovers for this Order are to be supervised by D Group, Brisbane or such other service recommended by the s 65L consultant, with the mother and father to equally share the costs of any such service.

13.

For the purposes of Order 12 the mother is to provide the father and the Independent Children's Lawyer with 28 days’ notice of her intention to travel to Brisbane with the child and within 7 days of the proposed date for travel the mother is to send the father and the Independent Children's Lawyer a copy of her and the child’s itinerary.

Father’s communication with child

14.

The father is permitted to communicate with the child by Skype at 5:00pm on Tuesday in any week which he does not spend time with the child. As to each such Skype call:

(a) The father is to initiate the calls;

(b) The mother is to be ready to receive the calls;

(d) In the event that the father commences to discuss this litigation, any of the child’s living arrangements, any of the past history of this matter, or agitate for any direct communication with the mother, the mother is at liberty to disconnect the Skype call.

15.

Should the child wish to speak with the father other than at times provided for in these orders, then the mother will permit him to do so, and forthwith initiate either a telephone or Skype call to the father.

Parties’ communication and provision of information

16.

The parents are to communicate with each other via phone only about the child and only in the event of an emergency involving the child.

17.

The mother is at liberty to provide information to the father via the “Our Family Wizard” program, and both parties are to forthwith undertake all steps necessary to be able to access that communication facility.

18.

The parties are to keep each other informed of any change of email address or telephone contact details as soon as is reasonably practicable after any change to them.

19.

The mother shall authorise all educational and healthcare providers to release to the father any information and documents relating to the child upon request by the father, and subject to the person making the request making payment of any costs associated therewith.

20.

The mother shall forthwith advise the father of the names and addresses of all educational and healthcare providers upon whom the child attends.

Other Orders

21.

Neither party will use physical discipline upon the child.

22.

Each of the parties have leave to provide copies of the Family Report and psychiatric assessments undertaken for the purpose of these proceedings to their treating mental health professionals.

23.

Both parties are to:

(a) Forthwith enrol in, and use their best endeavours to promptly complete, a post-separation parenting orders program;

(b) Provide the program provider with a copy of the Family Report, and their psychiatric assessment undertaken for the purposes of these proceedings; and

(c) provide the other party and the Independent Children's Lawyer with a copy of a certificate demonstrating the completion of the course.

Future Listing

24.

This matter be listed for mention only on a date to be advised to the parties in July 2018, or soon thereafter as the matter may be dealt with.

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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