Leo and Hanson - [2010] FamCA 321

FAMILY COURT OF AUSTRALIA

LEO & HANSON

[2010] FamCA 321

FAMILY LAW – PARENTING PROCEEDINGS – FATHER’S APPLICATION FOR SOLE PARENTAL RESPONSIBILITY OF CHILD – Mother of child is deceased – The Court is persuaded that the child’s best interests would be served by a joint parental responsibility arrangement between the father and maternal grandmother – Child to reside primarily with the maternal grandmother, and spend extensive periods with the father, given the attitudes and capacities of the parties

Family Law Act 1975 (Cth) Part VII

Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Hort & Verran [2009] FamCAFC 214
Russell & Russell And Anor [2009] FamCA 28
Donnell & Dovey [2010] FamCAFC 15
Simpson & Brockmann [2010] FamCAFC 37
Mulvany & Lane (2009) FLC 93-404

APPLICANT:

Mr Leo

RESPONDENT:

Mrs Hanson

FILE NUMBER:

DUC

405

2008

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Dubbo

JUDGMENT OF:

Coleman J

HEARING DATE:

15, 16, 17 & 18 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mark Auld

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW Dubbo

COUNSEL FOR THE RESPONDENT:

Ms Brana Obradovic

SOLICITOR FOR THE RESPONDENT:

Nelson Keane & Hemingway

COUNSEL FOR THE ICL:

Mr John Berry

SOLICITOR FOR THE ICL:

Boyd & Longhurst

Orders

That all previous parenting orders in relation to the child K born … June 2005, the child of Mr Leo (“the father”) and Miss A Hanson (deceased), be discharged.
That the father and Mrs Hanson (“the maternal grandmother”) have joint parental responsibility.
That until the child commences high school she live with the father as follows:
(a)For the first week of each month commencing on Saturday 1 May 2010, at 12 noon.
(b)For the whole of the school holidays which follow school terms 1, 2 and 3.
(c)For half of each Christmas school holiday, which the first half in odd numbered years and the second half in even numbered years, such time to include Christmas Eve, Christmas Day, New Years Eve and New Years Day.
(d) On Father’s Day if father’s Day falls on a day when K is with her father.
(e) At such other times as the parties may agree.
That the child live with the maternal grandmother at all other times and be enrolled in Distance Education.
That the maternal grandmother take all steps necessary to register with the local Aboriginal Lands Council.
That the maternal grandmother take all steps necessary to apply for a scholarship open to Aboriginal students for K’s high school education.
That once the child commences high school that she live with the father as follows:
(a)For the first half of all school holiday periods in odd numbered years and the second half in the even years.
That the child live with the maternal grandmother at all other times.
That both parties use their best endeavours to connect to Skype to enable the child to have video communication with the party with whom she is not living.
That the child communicate with the…

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 Leo and Hanson

Details

AGLC: Leo and Hanson [2010] FamCA 321
Case: [2010] FamCA 321
Decision Date: 23 April 2010

CaseChat Overview and Summary

This matter concerned parenting orders for a child, K, born in June 2005, who was the child of Mr Leo ("the father") and Miss A Hanson (deceased). The proceedings were before Coleman J. The dispute arose following the death of the child's mother, necessitating a review of existing parenting arrangements.

The court was required to determine the future parental responsibility for K, considering the father and the maternal grandmother. Specifically, the court needed to establish a living arrangement for K, including the division of time between the father and the maternal grandmother, and to make orders regarding communication, education, and notification of significant events.

Coleman J ordered that all previous parenting orders be discharged. The court made orders for joint parental responsibility between the father and the maternal grandmother. K was to live with the father for specific periods each month and during school holidays, with the maternal grandmother caring for K at all other times. The maternal grandmother was also directed to enrol in the local Aboriginal Lands Council and apply for a scholarship for K's high school education. The orders also detailed communication arrangements, including video calls and regular telephone contact, and established protocols for notification of illness, hospitalisation, and changes of address.

Orders

Orders of the court

That all previous parenting orders in relation to the child K born … June 2005, the child of Mr Leo (“the father”) and Miss A Hanson (deceased), be discharged.

That the father and Mrs Hanson (“the maternal grandmother”) have joint parental responsibility.

That until the child commences high school she live with the father as follows:

(a) For the first week of each month commencing on Saturday 1 May 2010, at 12 noon.

(b) For the whole of the school holidays which follow school terms 1, 2 and 3.

(c) For half of each Christmas school holiday, which the first half in odd numbered years and the second half in even numbered years, such time to include Christmas Eve, Christmas Day, New Years Eve and New Years Day.

(d) On Father’s Day if father’s Day falls on a day when K is with her father.

(e) At such other times as the parties may agree.

That the child live with the maternal grandmother at all other times and be enrolled in Distance Education.

That the maternal grandmother take all steps necessary to register with the local Aboriginal Lands Council.

That the maternal grandmother take all steps necessary to apply for a scholarship open to Aboriginal students for K’s high school education.

That once the child commences high school that she live with the father as follows:

(a) For the first half of all school holiday periods in odd numbered years and the second half in the even years.

That the child live with the maternal grandmother at all other times.

That both parties use their best endeavours to connect to Skype to enable the child to have video communication with the party with whom she is not living.

10.

That the child communicate with the party with whom she is not living:

(a) Each Monday and Thursday between 7:00pm and 7:30pm or such times as the parties may agree in writing, with that party instigating the telephone call to the party with whom the child is living and that party ensure the child takes the call; and

(b) At any time by email or Skype.

11.

That the change over shall take place outside C Post Office or such other place as the parties may agree in writing.

12.

That in the event that the child suffer any illness requiring medical attention or hospitalisation during any period the child is spending with each of the parties they shall immediately notify the other party of such illness and the name of the medical practitioner or hospital to which the child has been taken.

13.

That each of the parties:

(a) Sign all documents and do all things necessary to:

(i) Authorise the school at which the child may from time to time attend:

(1) To furnish the parties with copies of all school reports, notices advices concerning:

(1a) the said child; and

(1b) any activity involving the said child;

And

(2) To make available to the parties copies of any school photographs of the said child at each party’s expense.

(b) Notify the other party immediately of:

(i) Any major illness suffered by the said child;

(ii) Any hospitalisation of the said child;

And

(c) Make available to the other party copies of any medical report or reports that may be sent to them in connection with such illness or hospitalisation;

And

(d) Authorise:

(i) Any hospital in which the said child may be admitted; and

(ii) Any medical practitioner under whose care the said child may be to give such information to the parties as they may request.

14.

That each party keep the other party advised of their residential address, landline telephone number, mobile telephone number and e-mail address and shall give the other party 21 days notice in writing of any intention to change their residential address, landline telephone number, mobile telephone number or e-mail address and provide the other party with the details of such change.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.