Hyland and Starke

Case [2008] FMCAfam 1305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HYLAND & STARKE [2008] FMCAfam 1305
FAMILY LAW – Children – residence – relevant factors – shared care not practicable – capacity of parents to meet needs of children – substance abuse – antisocial behaviour – domestic violence – mental illness.
Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 65D, 65DAA, 65DAC,
Evidence Act 1995, s.69ZT

Abrams & Demars [2008] FMCAfam 797
Archbold and Archbold (1984) FLC ¶91-532; (1984) 9 Fam LR 798
Goode & Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC ¶93-286.
Harrington and Hynes (1982) 8 Fam LR 295
In the Marriage of Smythe (1983) 8 Fam LR 1029; (1983) 48 ALR 677; (1983) FLC 91-337

JB & BG (1994) FLC ¶92-515; (1994) 122 FLR 209; (1994) 18 Fam LR 255

Jones v Sutherland Shire Council [1979] 2 NSWLR 206; (1979) 40 LGRA 323
Jurss and Jurss (1976) 1 Fam LR 11; (1976) 9 ALR 455; (1976) ¶FLC 90-041
Kery and Kery [1996] FamCA 60
KN and Child Representative & NN and JN [2006] FamCA 611; (2006) 35 Fam LR 518; (2006) FLC ¶93-284.
Licha & Wunscher [2007] FamCA 357
MS & PS [2006] FamCA 588; (2006) FLC 93-268.
Pompidou & Pompidou [2007] FamCA 879
Potter & Ross and Ors [2008] FamCA 894
R & R: Children's Wishes [2000] FamCA 43; (2000) FLC ¶93-000; (2000) 155 FLR 29; (2000) 25 Fam LR 712.
Rose and Duroux (1976) FLC ¶90-064; (1976) 12 ALR 107; (1976) 2 Fam LR 11,101;
Schenck and Schenck (1981) FLC ¶91-023; 7 Fam LR 170
Swaney and Ward [1987] FamCA 24; (1988) FLC ¶91-928
U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416; (2002) 29 Fam LR 74; (2002) FLC ¶93-112; (2002) 23(15) Leg Rep 19.
Applicant: MR HYLAND
Respondent: MS STARKE
File Number: MLC 2898 of 2008
Judgment of: Riethmuller FM
Hearing dates: 31 July, 1 August, 6 August, 21 August 2008
Date of Last Submission: 1 September 2008
Delivered at: Melbourne
Delivered on: 1 December 2008

REPRESENTATION

Counsel for the Applicant: Mr Pavone
Solicitors for the Applicant: Clocktower Legal
Counsel for the Respondent: Dr Alexander
Solicitors for the Respondent: Victoria Legal Aid

ORDERS

  1. That all previous parenting orders with respect to [X] born in 1997 and [Y] born in 2000 be discharged.

  2. That the parents have equal shared parental responsibility for the children.

  3. That the children live with the father.

  4. That the children spend time with and communicate with the mother as may be agreed between the parties, and failing agreement:

    (a)

    During school term, each fourth weekend from 5 p.m. Friday to


    5 p.m.

    Sunday commencing on the first weekend of each school term;

    (b)

    For one half of all school term holidays at times to be agreed, and in default of agreement the first half of the school holidays…

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AGLC
Hyland and Starke [2008] FMCAfam 1305
Case
[2008] FMCAfam 1305
Decision Date

CaseChat Overview and Summary

The case of Hyland and Starke involved the determination of parenting arrangements for two children, [X] born in 1997 and [Y] born in 2000, following the separation of their parents. The matter was heard in the Family Court of Australia, where various pieces of evidence and documents were presented during the hearing. These were admitted without objection, though it was noted that their admissibility under the Evidence Act 1995 may have been questionable in a non-child-related proceeding.

The primary legal issues before the court were the determination of the appropriate parenting arrangements for the children, including the allocation of parental responsibility and the specifics of the children's living arrangements and contact with both parents. Section 69ZT of the Evidence Act was pertinent, as it allowed for certain rules of evidence to be relaxed in child-related proceedings, potentially impacting how evidence was assessed in this case.

In reaching its decision, the court considered the importance of the evidence, the nature of the subject matter, the probative value of the evidence, and its own powers to manage the proceedings. The court exercised its discretion under section 69ZT to give weight to the evidence presented, taking into account the unique circumstances of the case. Ultimately, the court made detailed orders regarding the children's living arrangements, contact with each parent, communication, and other practical aspects of their upbringing. These orders aimed to ensure the children's welfare while balancing the rights and responsibilities of both parents.

Orders

Orders of the court

1.

That all previous parenting orders with respect to [X] born in 1997 and [Y] born in 2000 be discharged.

2.

That the parents have equal shared parental responsibility for the children.

3.

That the children live with the father.

4.

That the children spend time with and communicate with the mother as may be agreed between the parties, and failing agreement:

(a)

During school term, each fourth weekend from 5 p.m. Friday to

5 p.m.

Sunday commencing on the first weekend of each school term;

(b)

For one half of all school term holidays at times to be agreed, and in default of agreement the first half of the school holidays from

5 p.m. on the last day of school to 5 p.m. on the middle Saturday of the holidays;

(c) For one half of the Christmas school holidays at times to be agreed, and in default of agreement for the first half in even numbered years and the second half in odd numbered years;

(d) In the event that the mother is able to travel to [S], for two further weekends per term in the [S] area at times to be agreed between the parties, and failing agreement on the weekend's nominated by the mother from 5 p.m. Friday to 5 p.m. Sunday;

(e) By telephone at reasonable times, such calls to be initiated by the mother.

5.

That for the purpose of changeovers the parties meet in the [location omitted].

6.

That each party keep the other advised at all times of their residential address, landline and mobile telephone numbers.

7.

That each party notify the other as soon as is practicable of any medical emergency involving the children or either of them requiring specialist medical treatment or hospitalisation whilst the children are in their respective care.

8.

That the father authorise the principal of any school that the children attend to forward to the mother at her expense (if any) copies of school reports, newsletters, notices and photograph order forms which are usually forwarded to parents.

9.

Both parties be permitted to attend the children's school, sporting and cultural events that are ordinarily attended by parents.

10.

That the family report writer be requested to explain the orders, and to the extent appropriate, the reasons for judgment to the children.

Background

Background to the litigation

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Evidence

Evidence Before The Court

During the course of the hearing evidence was given and various documents were tendered, without objection, which may not have been admissible if all of the provisions of the Evidence Act 1995 applied. However, s.69ZT provides that various provisions of the Evidence Act do not apply in child related proceedings. Importantly, the section states: 69ZT [Rules of evidence not to apply unless court decides] (1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:(a) the court is satisfied that the circumstances are exceptional; and(b) the court has taken into account (in addition to any other matters the court thinks relevant):(i) the importance of the evidence in the proceedings; and(ii) the nature of the subject matter of the proceedings; and(iii) the probative value of the evidence; and(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying. The practical application of this provision requires some care. Commonly evidence in a form that is not technically admissible is placed before the court without objection (usually as the parties do not dispute the relevant fact, or do not wish to incur the expenses of more formal proof). As a result, generally speaking, that evidence may be relied upon (to the extent that it has any rational persuasive effect): see Jones v Sutherland Shire Council [1979] 2 NSWLR 206; (1979) 40 LGRA 323 at 219; Pompidou & Pompidou [2007] FamCA 879 at [27], hence it is important to warn self-represented litigants of their rights to object to evidence being led: MS & PS [2006] FamCA 588; (2006) FLC 93-268. In cases where evidence is admitted as a result of the relaxation of the rules of evidence effected by s.69ZT, there will often be issues as to the weight that should be attached to that evidence. It is important that such issues be raised at the time, to allow the other party an opportunity to call such formal proof as may be available.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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