HOULIS & HOULIS - [2010] FMCAfam 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOULIS & HOULIS

[2010] FMCAfam 972

FAMILY LAW – Children – with whom children live – family violence – concerns in respect to father’s attitude to physical discipline – supervised time – equal shared care.

FAMILY LAW – Property – superannuation – contributions – just and equitable.

Family Law Act 1975, ss.60CA, 60CC, 60B, 61DA, 4 (1)

In the Marriage of Hall (1979) FLC 90-713
G & C [2006] FamCA 994

Lindsay & Baker (2007) FLC 93-347
JG & BG (1994) FLC 92-515
Church of the New Faith v Commissioner of Pay-Roll Tax VIC (1983) 8 CA 40
P & L [2006] FamCA 947
Oscar and Traynor [2008] FamCA 95
Hickey & Hickey (2003) FLC 93-141
Ferraro & Ferraro (1993) FLC 92-335
C v C (2005) FLC 93-220

West & Green (1993) FLC 92-394
Jones v Dunkel (1959) 101CLR 298

Applicant:

MS HOULIS

Respondent:

MR HOULIS

File Number:

HBC393 of 2009

Judgment of:

FM Baker

Hearing dates:

26, 27 & 28 May; 24 June; 21 & 22 July;
11 August 2010

Date of Last Submission:

11 August 2010

Delivered at:

Hobart

Delivered on:

9 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Fitzgerald

Counsel for the Respondent:

Mr Houlis in Person

Counsel for the Independent Children’s Lawyer:

Ms Mooney

ORDERS

Ms Houlis (“the wife”) and Mr Houlis (“the husband”) have equal shared parental responsibility for the four children [W] born [in] 2000, [X] born [in] 2001, [Y] born [in] 2003, [Z] born [in] 2007 (“the children”).
The children live with the wife.
The children spend time with the husband at church each Saturday, at Scouts, at the children’s sporting events and such other times as agreed, such time to take place in public.
The children spend such other time with the husband as agreed, such time to be supervised by a responsible adult as agreed.
The children communicate with the husband by telephone twice each week.
The parties commence and maintain a communication book with respect to the children, such book shall travel with the children between each party.
Both parties:
(a)Attend and complete, as soon as practicable, a Post Separation Parenting Program.
(b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
(c)Pay and otherwise be responsible for all costs associated with the program.
(d)Provide evidence to the other parties’ solicitor that they have enrolled in the program.
(e)Provide evidence to the other parties’ solicitor that they have successfully completed the program.
Neither party denigrate the other in the presence of the children or within hearing distance of the children or make derogatory comments about the other party to the children or within the hearing distance of the children.
The wife be restrained from leaving the children in the sole care of

Mr N.
The Independent Children’s Lawyer’s application for costs be reserved.

Property orders

From the net proceeds of sale currently invested, the parties pay the sum of…

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

AGLC: HOULIS & HOULIS [2010] FMCAfam 972
Case: [2010] FMCAfam 972
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Houlis and Houlis (2010) FMCAfam 972 involved proceedings between the parties for parenting and property orders. The parenting application concerned the allocation of parental responsibility, the living arrangements for the children, and whether the children were at risk of excessive physical discipline from either party. The property application involved the division of the assets and the parties' superannuation. The Federal Magistrate, Baker FM, found that the husband presented an unacceptable risk to the children if he had unsupervised time with them due to his use of physical discipline. The Magistrate held that it would not be in the best interests of the children for them to spend equal time with the parties, but rather that they should live with the wife and spend supervised time with the husband or time in public places. The Magistrate also made orders for the division of the assets and the parties' superannuation, including a cash adjustment to assist the wife in purchasing a home. The Magistrate found that the overall result was just and equitable.

Orders