FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Houlerman & Fanning [2024] FedCFamC2F 194
File number(s): PAC 5976 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 19 February 2024 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk – Orders made for children to spend no time with father. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA. Cases cited: B and B (1993) FLC 92-357
Betros & Betros [2017] FamCAFC 90
Saif & Saif [2020] FamCA 119
Slater & Light (2013) 48 Fam LR 573
Division: Division 2 Family Law Number of paragraphs: 174 Date of hearing: 5-7 February 2024 Place: Parramatta Counsel for the Applicant: Ms Jones Solicitor for the Applicant: Rafton Family Lawyers Counsel for the Respondent: Mr Connor Solicitor for the Respondent: Ark Law Lawyers Counsel for the Independent Children's Lawyer: Mr Schroder Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers ORDERS
PAC 5976 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HOULERMAN
Applicant
AND: MS FANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
19 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The children X born 2011, Y born 2013 and Z born 2015 (“the children”) spend no time with the father.
2.The mother may apply for an Australian travel document (passport) for the children without first obtaining the consent of the father and shall be the only person with parental responsibility for the children for the purposes of applying for, and being issued with, an Australian passport for the children.
3.Pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother shall be at liberty to cause the children to travel outside of the Commonwealth of Australia.
4.The mother is restrained from abusing, insulting, belittling, rebuking or criticising the father to or in the presence of the children or any of them and from permitting any other person to do so and the mother is further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.
5.The mother shall within 21 days at her discretion either:
(a)Attend upon her General Practitioner for the purpose of obtaining a Mental Health Plan to receive psychological therapy, counselling and support in relation to being the victim of domestic family violence and abuse, or;
(b)Attend upon Victims Services NSW, through Victims Access Line, to seek counselling and support being the victim of domestic violence.
6.The mother shall complete and submit to B Counselling a referral form as provided to her by the Independent Children’s Lawyer so as to enable X to receive counselling and therapy in relation to family conflict and breakup, grief and loss. Provided that X meets the eligibility criteria the mother shall thereafter ensure X attends upon such service as long as he is required to do so by such service.
7.In the event X does not meet the criteria…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the children should have any contact with their father, and if not, what alternative arrangements should be put in place to ensure the children's safety and wellbeing. The court had to weigh the allegations of domestic violence and abuse against the father, as well as the potential impact of the father's conduct on the children. The court also had to consider the mother's requests regarding the children's travel and access to psychological support services.
In reaching its decision, the court found that the risk posed by the father to the children was unacceptable, leading to the order that the children spend no time with him. The court emphasised the importance of protecting the children from exposure to the father's alleged abusive behaviour. The court further ordered that the mother could apply for Australian travel documents for the children without the father's consent and be the sole person responsible for the children for passport purposes. Additionally, the court mandated psychological support for the mother and the eldest child, and required the mother to enrol the children in specific programs to address their needs arising from the family conflict. The court also imposed restrictions on the mother to prevent her from discussing the proceedings in the children's presence and to protect the children from any negative comments about the father.
The final orders included provisions for the mother to seek mental health support and counselling for herself and the eldest child, and to enrol the other two children in a specified program to address their needs. The court's orders were designed to ensure the children's safety, provide them with necessary psychological support, and prevent any potential harm from exposure to the father's alleged behaviour.
Orders
Orders of the court
PAC 5976 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HOULERMAN
Applicant
AND:
MS FANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
19 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The children X born 2011, Y born 2013 and Z born 2015 (“the children”) spend no time with the father.
2. The mother may apply for an Australian travel document (passport) for the children without first obtaining the consent of the father and shall be the only person with parental responsibility for the children for the purposes of applying for, and being issued with, an Australian passport for the children.
3. Pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother shall be at liberty to cause the children to travel outside of the Commonwealth of Australia.
4. The mother is restrained from abusing, insulting, belittling, rebuking or criticising the father to or in the presence of the children or any of them and from permitting any other person to do so and the mother is further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.
5. The mother shall within 21 days at her discretion either:
(a) Attend upon her General Practitioner for the purpose of obtaining a Mental Health Plan to receive psychological therapy, counselling and support in relation to being the victim of domestic family violence and abuse, or;
(b) Attend upon Victims Services NSW, through Victims Access Line, to seek counselling and support being the victim of domestic violence.
6. The mother shall complete and submit to B Counselling a referral form as provided to her by the Independent Children’s Lawyer so as to enable X to receive counselling and therapy in relation to family conflict and breakup, grief and loss. Provided that X meets the eligibility criteria the mother shall thereafter ensure X attends upon such service as long as he is required to do so by such service.
7. In the event X does not meet the criteria for enrolment in B Counselling the mother shall attend upon X’s treating specialist in relation to X’s ASD as soon as practicable an obtain advice as to an appropriate agency or service that will be able to provide such counselling and therapy in relation to family conflict and possible grief and loss for X.
8. Within 21 days, the mother do all things necessary to enrol the children Y and Z into C Program and thereafter, if they are deemed suitable for such program, cause them to attend at the first opportunity.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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