Hunt & Theophane - [2008] FamCA 956

FAMILY COURT OF AUSTRALIA

HUNT & THEOPHANE

[2008] FamCA 956

FAMILY LAW – CHILDRENS MATTERS – parental responsibility – interim order for sole parental responsibility to mother with certain exceptions

FAMILY LAW – CHILDRENS MATTERS –inappropriate time for final hearing due to age of child and lack of current attachment to father – interim orders made – noted matter not part-heard

Family Law Act 1975 (Cth)

APPLICANT:

Ms Hunt

RESPONDENT:

Mr Theophane

INDEPENDENT CHILDREN’S LAWYER:

Ms Willis

FILE NUMBER:

CSC

1089

2007

DATE DELIVERED:

15 October 2008

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Benson

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Pope

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDRENS LAWYER

Ms Willis

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

That the mother have sole parental responsibility for the child … born … September 2006 save and except that:
(a)The mother will not change the child’s residence from the Cairns region without first giving the father 90 days written notice in advance;
(b)Both parties are restrained from interfering or preventing the child from participating in the religions of Buddhism and Greek Orthodox;
(c)The mother and father will be restrained from altering the child’s name other than to effect the correction of the surname on the child’s birth certificate and to effect that change both parties will forthwith each do all acts and things and sign all documents necessary to give effect to that correction and it is noted that that father has agreed to pay one half of the $99.00 fee in that respect;
(d)The parties ensure that the child attends upon Doctor V of the P Clinic, if time is available. This Order does not prevent the parties from taking the child to any other appropriate medical service in the event of emergencies or that medical service being unavailable;
(e)Each of the parties are to inform the other as soon as possible without delay in the event the child requires any significant medical treatment.
That the child live with the mother.
That the mother keep the father informed of all decisions made, where possible in advance, of any major long term issues of the child.
That until 23 March 2009 the child will spend time and communicate with the father as follows:
(a)From 8.30am to 5.30pm each Saturday and Sunday with changeovers to take place outside the H Shop;
(b)On Christmas Day 2008 from 8.30 am to 4pm;
(c)Upon the provision of two weeks written notice by the mother to the father, the father’s time may be suspended on one occasion within this period (with the time on both days to be suspended in one week) provided that such occasion does not include Christmas Day or New Years Day and provided that the mother offers make up time to the father to be taken as an additional day for each of the following two week-ends.
From 23 March 2009…

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 & Theophane

Details

AGLC: Hunt & Theophane [2008] FamCA 956
Case: [2008] FamCA 956
Decision Date: 15 October 2008

CaseChat Overview and Summary

In *Hunt & Theophane*, Benjamin J of the Family Court of Australia considered an application concerning the parental responsibility and living arrangements for a child born in September 2006. The dispute involved interim orders for sole parental responsibility to the mother, with specific exceptions, and the child’s residence with the mother. The court noted that a final hearing was not appropriate at that time due to the child's age and the lack of current attachment to the father, and that the matter was not part-heard.

The legal issues before the court included the determination of interim orders for parental responsibility, the child's residence, and the specific arrangements for the child to spend time and communicate with the father. The court also had to address provisions regarding the child's name, religious upbringing, medical treatment, and travel. Furthermore, the court was required to outline the process for resolving future disputes and the consequences of contravening the orders.

Benjamin J made consent orders that granted the mother sole parental responsibility, with exceptions including notice for relocation from the Cairns region, and restrained both parties from interfering with the child's participation in Buddhism and Greek Orthodox religions. The orders also detailed the process for correcting the child's surname, attendance at a specific clinic, and notification of significant medical treatment. The child was ordered to live with the mother, who was to keep the father informed of major long-term decisions. The orders established a phased approach to the child spending time and communicating with the father, commencing with weekend contact and progressively increasing to overnight stays and longer periods, with provisions for notice and make-up time. The court also mandated the use of a joint communication book, attendance at a Parenting Orders Program, and mediation for future difficulties.

The matter was adjourned for mention, with the parties directed to attend upon a Family Consultant to attempt to resolve outstanding parenting issues. Liberty to apply was granted, and costs were certified for counsel. The orders included a fact sheet detailing obligations, consequences of contravention, and sources of assistance.

Orders

Orders of the court

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

That the mother have sole parental responsibility for the child … born … September 2006 save and except that:

(a) The mother will not change the child’s residence from the Cairns region without first giving the father 90 days written notice in advance;

(b) Both parties are restrained from interfering or preventing the child from participating in the religions of Buddhism and Greek Orthodox;

(c) The mother and father will be restrained from altering the child’s name other than to effect the correction of the surname on the child’s birth certificate and to effect that change both parties will forthwith each do all acts and things and sign all documents necessary to give effect to that correction and it is noted that that father has agreed to pay one half of the $99.00 fee in that respect;

(d) The parties ensure that the child attends upon Doctor V of the P Clinic, if time is available. This Order does not prevent the parties from taking the child to any other appropriate medical service in the event of emergencies or that medical service being unavailable;

(e) Each of the parties are to inform the other as soon as possible without delay in the event the child requires any significant medical treatment.

That the child live with the mother.

That the mother keep the father informed of all decisions made, where possible in advance, of any major long term issues of the child.

That until 23 March 2009 the child will spend time and communicate with the father as follows:

(a) From 8.30am to 5.30pm each Saturday and Sunday with changeovers to take place outside the H Shop;

(b) On Christmas Day 2008 from 8.30 am to 4pm;

(c) Upon the provision of two weeks written notice by the mother to the father, the father’s time may be suspended on one occasion within this period (with the time on both days to be suspended in one week) provided that such occasion does not include Christmas Day or New Years Day and provided that the mother offers make up time to the father to be taken as an additional day for each of the following two week-ends.

From 23 March 2009 until 23 September 2009 the child will spend time with and communicate with the father as follows:

(a) Each week from 8.30am Friday until 5pm Friday and Saturday from 12pm until Sunday till 12pm with changeovers to take place outside the H Shop.

(b) Upon the provision of two weeks written notice by the mother to the father, the father’s time may be suspended on one occasion in this period (with the time on both days to be suspended in one week) provided that such occasion does not include Christmas Day or New Years Day and provided that the mother offers make up time to the father to be taken as additional day for each of the following two week-ends.

From 23 September 2009 until further order the child will spend time with and communicate with the father as follows:

(a) Each week from 8.30am Friday until 5pm on Sunday with changeovers to take place outside the H Shop.

(b) On or after midday 25 December 2009 the father is at liberty to spend a one off block period of three nights with the child and the father is permitted to travel with the child to Melbourne during this time. The child is to be returned to the mother by 3pm on the fourth day. The Father shall provide the mother with 30 days notice of his intention to take such block contact.

(c) Upon the provision of two weeks written notice by the mother to the father, the father’s time may be suspended on one occasion each six months in this period (with the time on both days to be suspended in one week) provided that such occasion does not include Christmas Day or New Years Day and provided that the mother offers make up time to the father to be taken as additional day for each of the following two week-ends.

Each party is to inform the other by letter or email of any intention to have the child fly, such flights being on commercial airlines and such notice being at least five days in advance of the proposed travel.

Each party shall keep the other advised of their home address, an email address and emergency contact details and advise the other of any change within 24 hours of any such change.

The mother and father will each make use of a joint communication book to be purchased by the mother and placed in the child’s bag at each handover pursuant to these Orders. Each of the parents shall refrain from using the communication book for any other purpose other than to inform the other as to child related issues concerning the day to day care of the child.

10. The each of the parents forthwith do all acts and things to enrol, attend at and complete the Parenting Orders Program conducted by Relationships Australia and each shall provide the other and the Independent Children’s Lawyer with evidence of their completion. Each party is given liberty to provide a copy of the Family Report prepared in this matter by Ms P to the course co-ordinator if so requested.

11. The parents will each attend at the Family Relationships Centre for mediation should any difficulties arise in relation to giving meaning and effect to these Orders or regarding the welfare of the child.

IT IS FURTHER ORDERED:

12. That the matter be adjourned for mention at 10am on 28 September 2009, or such other date as is requested bt the parties jointly in advance of that date in the Family Court of Australia at Cairns. Prior to this re-listing the parties will attend upon a Family Consultant with the Family Court of Australia in an endeavour to resolve any outstanding parenting issue in dispute.

13. Liberty to apply to the parties to have the matter listed on the giving of 28 days notice to the Court and the other party and supported by an affidavit.

14. Costs certified for Counsel.

15. Pursuant to s 65DA (2) and s 62B, 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.

NOTATIONS

A. It is directed that a copy of the Reasons for Judgment of today be taken out and place on the Court file.

B. It is noted that The Honourable Justice Benjamin in not part-heard in this matter.

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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