Lomax and Hodge - [2017] FCCA 1209

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOMAX & HODGE

[2017] FCCA 1209

Catchwords:
FAMILY LAW – Parenting – two children aged 17 and 6 years – family violence – no acknowledgment of violence – views of the children – options for terms and conditions on time-with considered – interim orders considered – order for no-time between children and father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (a),(b), 60CC(3), 61DA,

65DAA(3)

Evidence Act 1995 (Cth), s.140

Cases cited:

Re: F – Litigants in Person Guidelines (2001) FLC 93-072

Champness & Hansen (2009) FLC 93-407
PST & CPR [2006] FMCAfam 36
M & M (1998) FLC 91-979
B & B (1993) FLC 92-357
A & A (1998) FLC 92-800
Re L (Contact: – Domestic Violence) (2002) FLR 334
Napier & Hepburn (2006) FLC 93-303
U & U (2002) CLR 238

Applicant:

MS LOMAX

Respondent:

MR HODGE

File Number:

LNC 4 of 2016

Judgment of:

Judge McGuire

Hearing dates:

24, 25, 29 & 30 May 2017

Date of Last Submission:

30 May 2017

Delivered at:

Launceston

Delivered on:

29 June 2017

REPRESENTATION

Counsel for the Applicant:

Ms S Hunt

Solicitors for the Applicant:

Legal Aid Commission of Tasmania

The Respondent:

Appeared in person

Counsel for the Independent Children's Lawyer:

Ms T Eaton

Solicitors for the Independent Children's Lawyer:

Philip Welch

ORDERS

That the mother have sole parental responsibility for the children X born (omitted) 2000 (“X”) and Y born (omitted) 2010 (“Y”).
That X and Y live with the mother.
That the father communicate with X and Y by card or letter at Christmas and at the time of each boy’s birthday and that the mother ensure that each child receive such communication and that she encourage the children to respond to each communication provided that should the mother be of the view that the content of such communications from the father be inappropriate then she be entitled to keep such letter or card from the children or either of them.
That the father be and is hereby restrained from otherwise contacting the children or either of them save and except:
(a)At the instigation of the mother and then as determined by the mother; and
(b)That these Orders apply in respect of X only until 25 January 2018.
That the father have liberty to apply in respect of time with the children upon the filing of an affidavit from a qualified psychologist deposing to the following:
(a)That he/she has been provided with:
(i)A copy of these Orders and Reasons;
(ii)A copy of the Family Report of Mr J dated 24 October 2016;
(iii)A copy of the report and assessment of Dr E dated 22 December 2016;
(b)That he/she believes that Mr Hodge has made appropriate acknowledgments and gained appropriate insight into his behaviour towards the mother and the children as found in these Reasons and in the reports of Mr J and Dr E.

IT IS NOTED that publication of this judgment under the pseudonym Lomax & Hodge is approved pursuant to…

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 Lomax and Hodge

Details

AGLC: Lomax and Hodge [2017] FCCA 1209
Case: [2017] FCCA 1209
Decision Date: 29 June 2017

CaseChat Overview and Summary

In the matter of *Lomax and Hodge*, Judge McGuire of the Federal Circuit Court of Australia determined issues of parental responsibility and contact arrangements for two children, X and Y. The dispute concerned the arrangements for the children following the breakdown of the parents' relationship, with the mother seeking sole parental responsibility and specific contact limitations for the father.

The court was required to determine who should have sole parental responsibility for X and Y, where the children should live, and the nature and extent of the father's communication and contact with them. A key issue was the appropriate balance between the father's desire for contact and the need to protect the children and the mother from potentially inappropriate communications. The court also considered the future liberty to apply for altered contact arrangements based on the father's demonstrated insight into his past behaviour.

Judge McGuire ordered that the mother have sole parental responsibility for both children and that they live with her. The father was permitted to communicate with the children by card or letter at Christmas and on their birthdays, with the mother to facilitate receipt and encourage responses, but with the discretion to withhold communications deemed inappropriate. The father was otherwise restrained from contacting the children, except at the mother's instigation and on her terms. These orders regarding X were to apply only until 25 January 2018. The father was granted liberty to apply for further orders regarding time with the children, contingent upon a psychologist's affidavit confirming receipt of relevant documents and an assessment of the father's appropriate acknowledgments and insight into his behaviour.

Orders

Orders of the court

That the mother have sole parental responsibility for the children X born (omitted) 2000 (“X”) and Y born (omitted) 2010 (“Y”).

That X and Y live with the mother.

That the father communicate with X and Y by card or letter at Christmas and at the time of each boy’s birthday and that the mother ensure that each child receive such communication and that she encourage the children to respond to each communication provided that should the mother be of the view that the content of such communications from the father be inappropriate then she be entitled to keep such letter or card from the children or either of them.

That the father be and is hereby restrained from otherwise contacting the children or either of them save and except:

(a) At the instigation of the mother and then as determined by the mother; and

(b) That these Orders apply in respect of X only until 25 January 2018.

That the father have liberty to apply in respect of time with the children upon the filing of an affidavit from a qualified psychologist deposing to the following:

(a) That he/she has been provided with:

(i) A copy of these Orders and Reasons;

(ii) A copy of the Family Report of Mr J dated 24 October 2016;

(iii) A copy of the report and assessment of Dr E dated 22 December 2016;

(b) That he/she believes that Mr Hodge has made appropriate acknowledgments and gained appropriate insight into his behaviour towards the mother and the children as found in these Reasons and in the reports of Mr J and Dr E.

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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