Hurley and Simpson - [2016] FamCA 139

FAMILY COURT OF AUSTRALIA

HURLEY & SIMPSON

[2016] FamCA 139

FAMILY LAW – CHILDREN – Where the father seeks an order for equal shared parental responsibility and orders that he spend increased time with the child on a graduated basis – Where the mother and Independent Children’s Lawyer propose that the mother have sole parental responsibility and for the child to have recognition only contact with the father – Where both parties have a history of illicit drug use – Where the mother has engaged in services and the evidence suggests she has a stable lifestyle currently and is able to care for the child – Where the father has continued to use illicit drugs, has failed and refused to undergo some random urinalysis testing – Where the single expert opines the father is unable to place the child as a priority in his life because of his continued dependence on illicit drugs – Where the parents do not communicate at all – Where there is a history of family violence which resulted in the father being imprisoned for a serious assault upon the mother – Where it is not in the child’s best interests for the parents to have equal shared parental responsibility –Where it is found to be in the child’s best interests for the child to only have supervised recognition contact with the father – Where the mother seeks the child’s surname be changed – Where it is in the best interests of the child if the child’s surname remain unchanged

Family Law Act 1975 (Cth)

Chapman and Palmer (1978) FLC 90-510
Reynolds and Sherman (2015) FLC 93-659

Ryan and Burnett [2008] FamCAFC 72

APPLICANT:

Ms Hurley

RESPONDENT:

Mr Simpson

INDEPENDENT CHILDREN’S LAWYER:

Ms Youssef

FILE NUMBER:

SYC

4006

2013

DATE DELIVERED:

4 March 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

27 - 28 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Beck

SOLICITOR FOR THE APPLICANT:

G & D Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ladopoulos

SOLICITOR FOR THE RESPONDENT:

David H Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Sloane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

Orders

All previous orders be discharged.
The mother have sole responsibility for the child, B, born … 2012, (“the child”) except the mother shall do all things and sign all documents from time to time to ensure the child is only known by the surname “Simpson”.
The child live with the mother.
The child spend time with the father as follows:
4.1.From 10.00 am to 1.00 pm on the first Saturday of May each year;
4.2.From 10.00 am to 1.00 pm on the first Saturday of July each year;
4.3.From 10.00 am to 1.00 pm on the first Saturday of October each year;
4.4.From 10.00 am to 1.00 pm on the first Saturday of December each year;
4.5.From 10.00 am to 1.00 pm on the first Saturday of February each year.
For the purposes of time…

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 Hurley and Simpson

Details

AGLC: Hurley and Simpson [2016] FamCA 139
Case: [2016] FamCA 139
Decision Date: 4 March 2016

CaseChat Overview and Summary

In a proceeding before Watts J, the court considered orders concerning the parental responsibility and time arrangements for a child, B, born in 2012. The dispute involved the mother and the father, with the court ultimately making specific orders regarding the child's surname, residence, and the father's limited time with the child.

The court was required to determine the appropriate allocation of parental responsibility, the specific living arrangements for the child, and the nature and frequency of the father's time with the child. Additionally, the court addressed the practical arrangements for changeovers, the involvement of external services and therapy for the mother, and the exchange of medical and educational information between the parents. The court also considered orders aimed at protecting the child from parental conflict and ensuring the parents' communication regarding significant life changes.

Watts J ordered that the mother have sole responsibility for the child, with the child to live with her. The father's time with the child was significantly restricted to specific, short periods on the first Saturday of May, July, October, December, and February each year, with strict protocols for changeovers at a police station to avoid contact between the parents and with the father's current partner or paternal grandmother. The mother was directed to continue engaging with specified services and therapy. The orders also mandated the exchange of medical reports, notification of hospital admissions or emergencies, and the provision of school-related information to both parents. Furthermore, both parents were restrained from discussing the proceedings or speaking negatively about the other parent or their family in the child's presence, and were required to take steps to prevent others from doing so. The orders incorporated details regarding contravention and assistance as set out in an attached Fact Sheet, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

All previous orders be discharged.

The mother have sole responsibility for the child, B, born … 2012, (“the child”) except the mother shall do all things and sign all documents from time to time to ensure the child is only known by the surname “Simpson”.

The child live with the mother.

The child spend time with the father as follows:

4.1. From 10.00 am to 1.00 pm on the first Saturday of May each year;

4.2. From 10.00 am to 1.00 pm on the first Saturday of July each year;

4.3. From 10.00 am to 1.00 pm on the first Saturday of October each year;

4.4. From 10.00 am to 1.00 pm on the first Saturday of December each year;

4.5. From 10.00 am to 1.00 pm on the first Saturday of February each year.

For the purposes of time pursuant to order 4 herein, all changeovers occur at Suburb M Police Station, N Street, Suburb M. For the purpose of this, the mother deliver the child to the paternal grandmother and/or the father’s current partner Ms O at the commencement of the father’s time and immediately depart the Police Station and avoid any contact with the paternal grandmother and/or the father’s current partner Ms O after changeover occurs, and the paternal grandmother and/or the father’s current partner Ms O return the child to the mother at the conclusion of the father’s time and immediately depart the Police Station and avoid contact with the mother after changeover occurs.

The mother is to continue to engage in services offered by the P Service and to follow all directions and comply with all requirements of that service.

The mother is to continue DBT therapy and obey all reasonable directions from her therapy provider.

The mother and the father shall ensure that the other parent is provided by email with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of their receiving such a report.

The mother shall ensure that the father is notified as soon as practicable if, while in her care:

9.1. the child is admitted to hospital; or

9.2. the child is involved in a medical emergency.

10.

The father shall ensure that the mother is notified as soon as practicable if, while in his care:

10.1. the child is admitted to hospital; or

10.2. the child is involved in a medical emergency.

11.

These orders authorise any school which the child attends from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother and/or the father in relation to the child.

12.

The mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.

13.

The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and not less than fourteen (14) days prior to the proposed change.

14.

The mother and the father shall:

14.1. be restrained from:

14.1.1. discussing these proceedings in the hearing of or presence of the child; and

14.1.2. speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child; and

14.2. take all reasonable steps to prevent any other person:

14.2.1. discussing these proceedings in the hearing of or presence of the child; and

14.2.2. speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.

15.

Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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.

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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