FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOCKE & HARDY (Interim Parenting) | [2016] FCCA 1778 |
| Catchwords: FAMILY LAW – Meaningful relationship between children and both parents – change of residence – role of “status quo” – high levels of parental conflict – issues of parental capacity especially of Mother – issues raised by Father and by family consultant about Mother’s mental health – Court’s consideration of evidence on an interim basis without making formal findings. |
| Legislation: Family Law Act 1975, ss.60B(1)(a) & (b), 60B(2); 60CA; 60CC(2)(a) and (b); 60CC(3)(ca), (f) & (d), 65DAA(2) and (3) |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Crouper & Mitchell [2014] FamCAFC 246 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 |
| Applicant: | MS LOCKE |
| Respondent: | MR HARDY |
| File Number: | CAC 385 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 24 February 2016 |
| Date of Last Submission: | 24 February 2016 |
| Delivered at: | Canberra |
| Delivered on (oral reasons): | 20 May 2016 |
Written reasons provided: | 14 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Stagg |
| Solicitors for the Applicant: | Pappas J Attorney, Canberra |
| Solicitor/Advocate for the Respondent: | Mr M Johnson |
| Solicitors for the Respondent: | Legal Aid ACT |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mr K Robinson |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness |
ORDERS
Orders 2 and 3 of the Interim Consent Orders dated 19 March 2015 be discharged. The Orders of 19 March 2015 are otherwise to continue to operate.
The children, X (born (omitted) 2009) and Y (born (omitted) 2011) (“the children”) live with the Father.
The children spend time with the Mother for five nights every fortnight, on days to be agreed between the parties and the Independent Children’s Lawyer in writing.
Failing agreement in accordance with Order 3 above, the children are to spend time with the Mother as follows:
(a)In week 1, commencing Friday 27 May 2016, from after school to the following Monday before school, and every alternate week thereafter;
(b)In week 2 commencing Wednesday 1 June 2016, from after school to the following Friday before school and every alternate week thereafter;
The parties and the Independent Children’s Lawyer are to notify Chambers, by way of email, within 21 days from the date of these Orders whether or not a Final Hearing is required in this matter.
THE COURT NOTES THAT:
A.Should the parties require a Final Hearing, Orders (including Trial Directions) will issue in Chambers, setting the matter down for Hearing for two days in 2017, inclusive of an Order for an updated Family Report;
B.Should the parties not require a Final Hearing, the matter may be listed for further Directions on a date and time to be advised.
IT IS NOTED that publication of this judgment under the pseudonym Locke & Hardy is approved pursuant…
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- Locke and Hardy (Interim Parenting) [2016] FCCA 1778
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- [2016] FCCA 1778
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CaseChat Overview and Summary
The court was required to determine the appropriate interim parenting orders, specifically whether to adopt, modify, or discharge existing consent orders, and to consider the recommendations of the Family Consultant regarding the children's residence, time with each parent, and the need for further assessments or educational programs for the parents. The court also had to consider the mother's submission that all evidence, including the Family Consultant's recommendations, should be tested at a final hearing.
Judge Neville reasoned that at an interim stage, it was appropriate to rely on clear independent evidence, such as that from an experienced family consultant, rather than deferring all decisions until a final hearing, especially when a final hearing was distant. The court applied the principles of protecting children and ensuring they have a meaningful relationship with both parents, as prescribed in Part VII of the relevant Act, considering the best interests of the children. The court noted the father's clear drug screen, the mother's lack of evidence regarding her mental health, and the mother's departure from her father's residence as relevant factors.
The court ordered that the children live with the Father and spend time with the Mother for five nights every fortnight, with specific arrangements for alternate weeks if direct agreement was not reached. Existing interim consent orders were discharged to the extent they conflicted with these new orders, which otherwise continued to operate. The parties were also directed to notify the court within 21 days whether a final hearing was required.
Orders
Orders of the court
1. Orders 2 and 3 of the Interim Consent Orders dated 19 March 2015 be discharged. The Orders of 19 March 2015 are otherwise to continue to operate.
2. The children, X (born (omitted) 2009) and Y (born (omitted) 2011) (“the children”) live with the Father.
3. The children spend time with the Mother for five nights every fortnight, on days to be agreed between the parties and the Independent Children’s Lawyer in writing.
4. Failing agreement in accordance with Order 3 above, the children are to spend time with the Mother as follows:
(a) In week 1, commencing Friday 27 May 2016, from after school to the following Monday before school, and every alternate week thereafter;
(b) In week 2 commencing Wednesday 1 June 2016, from after school to the following Friday before school and every alternate week thereafter;
5. The parties and the Independent Children’s Lawyer are to notify Chambers, by way of email, within 21 days from the date of these Orders whether or not a Final Hearing is required in this matter.
THE COURT NOTES THAT:
A. Should the parties require a Final Hearing, Orders (including Trial Directions) will issue in Chambers, setting the matter down for Hearing for two days in 2017, inclusive of an Order for an updated Family Report;
B. Should the parties not require a Final Hearing, the matter may be listed for further Directions on a date and time to be advised.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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