Hunt and Theophane - [2009] FamCA 1053

FAMILY COURT OF AUSTRALIA

HUNT & THEOPHANE

[2009] FamCA 1053

FAMILY LAW – CHILDREN – sole parental responsibility – with whom a child lives – with whom a child spends time with – child’s religion

Family Law Act 1975 (Cth)

C & B [2007] FMCAfam 539
G and C [2006] FamCA 994

APPLICANT:

Ms Hunt

RESPONDENT:

Mr Theophane

INDEPENDENT CHILDREN’S LAWYER:

Vandeluer & Todd

FILE NUMBER:

CSC

1089

2007

DATE DELIVERED:

6 November 2009

PLACE DELIVERED:

Hobart

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

7 & 9 October 2009

REPRESENTATION

FOR THE APPLICANT:

Applicant in person

FOR THE RESPONDENT:

Respondent in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bentley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Vandeluer & Todd

Orders

All previous parenting orders in relation to the child, … born … September 2006 be discharged.
The mother have sole parental responsibility for the child except that:
a.the mother will not change the child’s residence to an home further than 75 kilometres by road (using the most direct route) from Cairns Post Office, without first obtaining the fathers written consent or otherwise with the approval of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
b.the mother is permitted to move the child’s residence to the Atherton area.
c.both parties are restrained from interfering with or preventing the child from reasonably participating in the other parent’s religious observations (of Buddhism and Greek Orthodox), when in the care of that other parent;
d.the mother and father are each restrained from altering the child’s name (except as agreed in writing between the parties or otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth)).
e.The mother will keep the father informed of all decisions, where possible in advance, in relation to major long term issues for the child including but not limited to:
i.education
ii.health.
iii.any with any further moves of the child’s residence, within the 75 kilometre area.
The child will live with the mother.
That the child spend time with the father as follows:
a.From the date of this order to 31 December 2011;
i.each alternate weekend commencing on 20 November 2009 from 8.30am Friday until 4.00pm Sunday. The father to collect the child from the Skyrail base at the commencement of this time and the mother to collect the child from the W Child Care Centre at the end of that time. If the Child Care Centre is closed or if the mother is unable or unwilling to meet the cost of the Child Care Centre to facilitate that collection, then, after giving five (5) days notice in writing to the father, collection will take place at the children’s section of the local Library;
ii.each alternate Thursday commencing 12 November 2009 from 10.00am Thursday until 10.00am Friday. The father to collect the child from the Skyrail base at the commencement of this time and the mother to collect the child from the W Child Care Centre at the end 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.

Continue reading Hunt and Theophane

Details

AGLC: Hunt and Theophane [2009] FamCA 1053
Case: [2009] FamCA 1053
Decision Date: 6 November 2009

CaseChat Overview and Summary

In the matter of *Hunt and Theophane*, Benjamin J considered parenting orders concerning a child born in September 2006. The dispute involved the mother's desire to relocate the child's residence and the father's objections, alongside broader issues of parental responsibility and time spent with each parent.

The court was required to determine the extent of parental responsibility to be allocated to each parent, specifically whether the mother should have sole parental responsibility. Further issues included the conditions under which the child's residence could be changed, the extent to which each parent should be involved in major long-term decisions concerning the child's education and health, and the specific arrangements for the child to spend time with each parent, including during school holidays and significant dates. The court also considered provisions for communication between the parties and the child, and the prevention of denigration of either parent.

Benjamin J discharged all previous parenting orders and made new orders allocating sole parental responsibility to the mother, subject to specific conditions. These conditions included restrictions on changing the child's residence beyond a 75-kilometre radius from Cairns Post Office without consent or court approval, and permission for relocation within the Atherton area. The court also made orders restraining parties from interfering with the child's participation in the other parent's religious observations and from altering the child's name without agreement or court order. Detailed provisions were made for the child to live with the mother and spend time with the father, with specific arrangements for changeovers, school holidays, and significant dates, which were to evolve from late 2009 through to 2013 and beyond. The orders also included provisions for communication, information sharing regarding major long-term issues, and mutual undertakings not to denigrate each other.

Orders

Orders of the court

All previous parenting orders in relation to the child, … born … September 2006 be discharged.

The mother have sole parental responsibility for the child except that:

a. the mother will not change the child’s residence to an home further than 75 kilometres by road (using the most direct route) from Cairns Post Office, without first obtaining the fathers written consent or otherwise with the approval of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

b. the mother is permitted to move the child’s residence to the Atherton area.

c. both parties are restrained from interfering with or preventing the child from reasonably participating in the other parent’s religious observations (of Buddhism and Greek Orthodox), when in the care of that other parent;

d. the mother and father are each restrained from altering the child’s name (except as agreed in writing between the parties or otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth)).

e. The mother will keep the father informed of all decisions, where possible in advance, in relation to major long term issues for the child including but not limited to:

i. education

ii. health.

iii. any with any further moves of the child’s residence, within the 75 kilometre area.

The child will live with the mother.

That the child spend time with the father as follows:

a. From the date of this order to 31 December 2011;

i. each alternate weekend commencing on 20 November 2009 from 8.30am Friday until 4.00pm Sunday. The father to collect the child from the Skyrail base at the commencement of this time and the mother to collect the child from the W Child Care Centre at the end of that time. If the Child Care Centre is closed or if the mother is unable or unwilling to meet the cost of the Child Care Centre to facilitate that collection, then, after giving five (5) days notice in writing to the father, collection will take place at the children’s section of the local Library;

ii. each alternate Thursday commencing 12 November 2009 from 10.00am Thursday until 10.00am Friday. The father to collect the child from the Skyrail base at the commencement of this time and the mother to collect the child from the W Child Care Centre at the end of that time. If the Child Care Centre is closed or if the mother is unable or unwilling to meet the cost of the Child Care Centre to facilitate that collection then after giving five (5) days notice in writing to the father, collection to take place at the children’s section of the local Library;

iii. subject to these orders or written agreements for special times, during the gazetted Queensland school holidays the time the child spends with the father shall be increased and/or varied as follows;

1. In the calendar year 2010 the alternate weekend time that occurs under these orders over those school holidays shall extend to 4.00pm on Tuesdays.

2. In the calendar year 2010 the alternate weekend time that occurs over those school holidays shall extend to Wednesdays and the alternate Thursday nights over those school holidays in that year shall suspend;

iv. On 25 December 2009 and 2011, from 2.30pm on Christmas Day until 2.30pm on Boxing Day. The child will live with the mother from 2.30pm on 24 December to 2.30 pm on Christmas Day in those years and any other order for the child to spend time with the father between those hours is suspended;

v. On 24 December 2010, from 2.30pm on Christmas Eve until 2.30pm on Christmas Day, changeovers to take place at the S Shopping Centre. The child will live with the mother from 2.30pm on 25 December to 2.30 pm on 26 December 2010 and any other order for the child to spend time with the father between those hours is suspended;

b. From 1 January 2012:-

i. during the gazetted Queensland school terms, each alternate weekend from 3.00pm Friday until 4.00pm Sunday with changeovers to take place on Friday at the child’s school and on Sunday at S Shopping Centre;

ii. during the gazetted Queensland school terms, each alternate week from after school Thursday until the commencement of school Friday with the father to collect the child from and return the child to the school the child is attending.

iii. In terms of starting days for the time the child spends with the father during school term;

1. if the child is primarily with the father in the last week of the preceding mid term school holiday period (or the week commencing 15th January of the preceding January school holiday for the start of first term) then the alternate Thursday night shall commence on the first Thursday after the start of that term and the alternate weekend shall commence on the second Friday after the start of term; AND

2. if the child is primarily with the mother the final week of the preceding mid term school holiday period (or the week commencing 8th January of the preceding January school holiday for the start of first term) then the alternate weekends shall commence on the first Friday after the start of that term and the second Thursday after the start of term;

(iv) For the Queensland school holidays in January 2012 (which is the school holiday before the child commences full time school), the child will spend time with the father for one week, being the weeks commencing the first and third Saturday of that month. Time commencing at 10.00am on each such Saturday and concluding 10.00am the next Saturday, changeovers to take place at the S Shopping Centre;

(v) For 2012 and each alternate year afterwards, for the first week of the mid term school holidays, commencing at 10.00am on the first Saturday and concluding 10.00am on the second Saturday. Changeovers to take place at the S Shopping Centre.

(vi) For 2013 and each alternate year afterwards, for the second week of the mid term school holidays, commencing at 10.00am on the second Saturday and concluding 10.00am on the third Saturday. Changeovers to take place at the S Shopping Centre.

(vii) For Christmas 2012 and each alternate year afterwards, the child will spend time with the father from 10.00am on the first Saturday of the school holiday period until 2.30pm on Christmas Day, 25 December; and in the immediately following New Year, for 1 week from 1st January and one week from 15th January, commencing at10.00am on each such day and concluding 10.00am one week later. Changeovers to take place at the S Shopping Centre. This being a total of 3 weeks of the approximately 5 week Christmas/New Year School holiday period;

(viii) For Christmas 2013 and each alternate year afterwards, the child will spend time with the father from 2.30pm on Christmas Day to 10.00am on the following 1st January; then for 1 week from 8th January. Changeovers to take place at the S Shopping Centre. This being a total of 2 weeks of the approximately 5 week Christmas/New Year School holiday period.

In the event that the child is not otherwise spending Father’s Day with the father pursuant to these orders the child will spend time with the father from 8.45am until start of school the following day. Collection of the child to take place at the Skyrail base.

In the event that the child is not otherwise spending Mother’s Day with the mother, the time with the father over that weekend will end at 8.45am that day, with the mother to collect the child from the children’s section of the local Library.

If the child is with the mother on the child’s birthday, she is to spend 1 hour with the father from 4.00pm to 5.00pm. The child to be collected from and returned to the Skyrail base and returned to the Skyrail base if a school day.

If the child is with the father on the child’s birthday, she is to spend 1 hour with the mother from 4.00pm to 5.00pm. The child to be collected from and returned to from the children’s section of the local Library.

Each party shall keep the other advised of their home address and emergency contact details and advise the other of any change within twenty (24) hours for such change.

10.

The mother will sign all such documents and do all such acts as are necessary to authorise the child’s school to provide to the father, at the father’s expense, copies of school reports, school circulars and newsletters and any school photographs and this order reflects the mother’s authority in that regard.

11.

Each party, whilst the child is not in their care, will have reasonable telephone communication with the child, such contact to be initiated by the party who does not have the child in their care.

12.

Neither party will denigrate the other party, their partner or family members, in the presence or hearing of the child.

13.

The parties will communicate by way of a communication book which is to be handed over with the child at changeovers AND in the event the book is lost, it is the responsibility of the party who lost it to provide a replacement book.

14.

The mother undertake therapeutic counselling for the purposes of assisting her with regard to anxiety.

15.

Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

16.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

17.

Subject to this direction:-

a. By way of interlocutory direction, at the expiry of twenty (28) days but within thirty five (35) days from the date of this order the Independent Children’s Lawyer forward to the Department of Child Safety, Queensland a sealed copy of this order, a copy of the reasons delivered with these orders, a copy of the Family Reports prepared before the October 2008 orders and a copy of the Family Report of Ms P dated 28 September 2008.

b. The parties, or any one of them, have leave to apply to discharge this direction upon giving seven (7) days notice in writing to the Court and the other parties. Such leave to be available for twenty one (21) days from the date of this direction.

c. The appointment of the Independent Children’s Lawyer be discharged from thirty five (35) days from the date of these orders or such longer time as is otherwise directed by a court.

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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