Hughes & Miller - [2022] FedCFamC2F 218

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hughes & Miller [2022] FedCFamC2F 218

File number(s): ADC 2685 of 2020

Judgment of: JUDGE DICKSON

Date of judgment: 4 March 2022

Catchwords: FAMILY LAW - Parenting – same sex relationship – 7 year old child - where respondent is the biological mother to the child – where the applicant commenced a relationship with the respondent shortly after the birth of the child – where the applicant has spent time with the child during her relationship with the respondent and post separation – where the applicant seeks equal shared parental responsibility and ongoing time spending orders with the child – where the respondent seeks an order for sole parental responsibility and opposes any time spending orders being made – allegations of family violence - consideration of who may apply for a parenting order – where applicant is not a parent but is a person concerned with the care, welfare and development of the child – where the Family Consultant supports an ongoing involvement between the applicant and the child – where there should be an order for sole parental responsibility in favour of the respondent but orders for the applicant to spend time with the child – best interests of the child

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 65AA, 65D

Cases cited:
Chan & Chan & Anor [2015] FCCA 265

Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93 428; (2010) 42 Fam LR 558

Goode & Goode (2006) FLC 93-286

KAM & MJR & JIG (1998) FamCA 1896

Mankiewicz and Anor & Schwarz and Anor [2016] FamCAFC 153; (2016) FLC 93-275

Musgrove & Panshin [2014] FCCA 1680

Re J & M: Residence Application (2004) 32 Fam LR 668

Sharp & Underwood [2014] FamCA 301

Division: Division 2 Family Law

Number of paragraphs: 246

Date of last submission/s: 16 December 2021

Date of hearing: 13-16 December 2021

Place: Adelaide

Counsel for the Applicant: Ms Horvat

Solicitor for the Applicant: Peter Fisher Lawyers

Counsel for the Respondent: Mr McQuade

Solicitor for the Respondent: C M Tucker & Associates

Counsel for the Independent Children's Lawyer: Ms Olsson

Solicitor for the Independent Children's Lawyer: Silkwoods
ORDERS

ADC 2685 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HUGHES

Applicant

AND:
MS MILLER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

4 MARCH 2022

THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
2. The respondent mother do have sole parental responsibility for the child X born 2015 (‘the child’) PROVIDED THAT prior to making the sole determination about any significant medical or educational issues the respondent mother shall:
2.1.Use her best endeavours to advise the applicant mother in writing of the decision intended to be made;
2.2.Seek the applicant mother’s written response to the issues to be decided;
2.3.Advise the applicant mother in writing as soon as reasonably practicable of her ultimate decision; and

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 Hughes & Miller

Details

AGLC: Hughes & Miller [2022] FedCFamC2F 218
Case: [2022] FedCFamC2F 218
Decision Date

CaseChat Overview and Summary

In the case of Hughes & Miller, the Federal Circuit and Family Court of Australia was tasked with determining various parenting orders between Ms Hughes and Ms Miller in relation to their child X. The court had to decide on issues such as parental responsibility, the appropriateness of equal shared parental responsibility, and the extent of time spending orders between the applicant and the child. The court found that the applicant mother was a person concerned with the care, welfare, and development of the child and had standing to apply for parenting orders. The court decided against making an order for equal shared parental responsibility, citing the lack of communication and trust between the parties. Instead, the court proposed a hybrid order, where the respondent mother would have sole parental responsibility, but would be required to consult with the applicant mother on significant matters. The court also ordered a modest increase in time spending between the applicant and the child, ensuring it did not challenge the respondent mother's primary role. The court's decision was based on the child's best interests, considering factors such as the child's relationship with both parties, their capacity to provide for the child's needs, and the potential impact of changes in the child's circumstances.

Orders