McGowan and Hahn - [2019] FamCA 751

FAMILY COURT OF AUSTRALIA

MCGOWAN & HAHN

[2019] FamCA 751

FAMILY LAW – CHILDREN – Interim parenting proceedings – Where allegations of the child being sexually abused by the father – Where parties consent to the child living with the mother – Where discrete issue for determination is the child’s time with the father and if any whether such time is to continue to be supervised – Where discussion of applicable principles – Where overriding protective considerations – Where orders made for child’s time with the father to continue to be supervised.

Family Law Act 1975 (Cth) ss 60B, 60CA 60CC, 61DA, 69ZL

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
McGowan & Hahn [2018] FCCA 2626
MRR v GR [2010] HCA 4

APPLICANT:

Mr McGowan

RESPONDENT:

Ms Hahn

INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman

FILE NUMBER:

PAC

2445

2018

DATE DELIVERED:

17 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

23 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Aaron Legal Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Coulton

RESPONDENT – SELF-REPRESENTED LITIGANT:

Ms Hahn

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagianis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Family Law

Orders

That the father’s Application in a Case filed 14 May 2019 (as amended on 12 July 2019) be dismissed.
That, without admission, the mother shall at all times use the name “X McGowan” in relation to the child and is hereby retrained from using or adopting the use of any other surname for the child including the surname “Hahn-McGowan”.
That orders made 23 July 2019 continue pending further order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McGowan & Hahn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2445 of 2018

Mr McGowan

Applicant

And

Ms Hahn

Respondent

REASONS FOR JUDGMENT

The interim application for determination arises in the context of ongoing parenting proceedings between the applicant father and the respondent mother in relation to the child of their relationship X born in 2017.
Proceedings were commenced by the father by application filed 1 June 2018 in the Federal Circuit Court of Australia. In his subsequent amended application filed 21 May 2019 he sought parenting orders in relation to the child that, in summary, provided:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father; and
c)that the child spend defined 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 McGowan and Hahn

Details

AGLC: McGowan and Hahn [2019] FamCA 751
Case: [2019] FamCA 751
Decision Date: 17 October 2019

CaseChat Overview and Summary

In *McGowan and Hahn*, Foster J of the Federal Circuit Court of Australia considered a dispute between a father and mother concerning the surname of their child. The father sought orders regarding the child's surname, while the mother had been using a different surname for the child.

The central legal issue before the court was whether to grant the father's application concerning the child's surname, and consequently, what surname the child should be permitted to use. The court was required to determine the appropriate course of action in light of the existing circumstances and the parties' competing interests.

Foster J dismissed the father's application. The court ordered that the mother shall at all times use the surname "X McGowan" in relation to the child and is restrained from using any other surname for the child, including "Hahn-McGowan". Existing orders made on 23 July 2019 were to continue pending further order.

Orders

Orders of the court

That the father’s Application in a Case filed 14 May 2019 (as amended on 12 July 2019) be dismissed.

That, without admission, the mother shall at all times use the name “X McGowan” in relation to the child and is hereby retrained from using or adopting the use of any other surname for the child including the surname “Hahn-McGowan”.

That orders made 23 July 2019 continue pending further order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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