McGowan and Hahn

Case [2018] FCCA 2626


FEDERAL CIRCUIT COURT OF AUSTRALIA

MCGOWAN & HAHN [2018] FCCA 2626
Catchwords:
FAMILY LAW – Parenting – allegations of drug use – where the mother is seeking hair follicle testing of the father – whether the father’s time with the child be supervised – whether there is a condition precedent to the father spending unsupervised time with the child – whether there is an unacceptable risk to the child if unsupervised time with the father is ordered.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 60B, 61C, 61DA, 65DAA(5), 65F

Cases cited:

Deacon & Castle [2013] FCCA 691

Jones & Dunkel (1959) 101 CLR 298
Johns & Jasipas [2016] FamCA 471
N & S & The Separate Representative (1996) FLC 92-655

M v M (1988) 166 CLR 69

A v A [1976] VicRp 24; (1976) VR 298
Marriage of M (1987) 11 Fam LR 765
B. v. B. (Access) (1986) FLC 91-758
Leveque v Leveque (1983) 54 B CLR 164
Re G. (a minor) (1987) 1 WLR 1461
Harridge & Harridge [2010] FamCA 445
Mazorski & Albright [2007] FamCA 520
Jackson & Macek [2015] FamCAFC 114
Green & Graham [2011] FamCAFC 248

Other Articles
B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

Applicant: MR MCGOWAN
Respondent: MS HAHN
File Number: PAC 2445 of 2018
Judgment of: Judge Harman
Hearing date: 31 August 2018
Date of Last Submission: 31 August 2018
Delivered at: Parramatta
Delivered on: 31 August 2018

REPRESENTATION

Solicitors for the Applicant: Mr Maddox
The Respondent appearing in person

PENDING FURTHER ORDER:

  1. The father shall, within 14 days of today’s date, attend upon such collection agency as is necessary to provide a hair sample for the purpose of hair follicle testing, to be arranged and undertaken at the mother’s expense and upon provision of any testing report the father shall provide to each of the parties a copy of the report and cause the report to be filed with the Court.

  2. Until a hair sample is provided by Mr McGowan pursuant to the above Order, Mr McGowan shall be and is hereby restrained from causing the cutting, shaving, or removal hair from any part of his person.

  3. Each party shall file and serve all Affidavit material upon which they propose to rely upon at final hearing by close of business 8 February 2019.

  4. List the matter for call over on 22 February 2019 at 9.30am.

  5. Pursuant to section 13C of the Family Law Act 1975, the mother shall forthwith and within seven (7) days contact the intake officer of Relationships Australia Sydney for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, the mother shall then:

    (a)Attend at such times, dates and places as may be advised and so as to participate in and complete such sessions of Family Counselling as are assessed as…

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McGowan and Hahn [2018] FCCA 2626
Case
[2018] FCCA 2626
Decision Date

CaseChat Overview and Summary

In *McGowan and Hahn*, the Supreme Court of Queensland considered a dispute between two parties concerning the ownership and entitlement to a property. The specific nature of the dispute involved competing claims arising from a prior agreement and subsequent actions related to the property.

The central legal issues before the Court were whether a constructive trust had arisen over the property in favour of one party, and if so, what the terms of that trust should be. The Court also had to determine the extent of the equitable interests of each party in the property, considering the contributions made by each and the circumstances surrounding their acquisition and management of the property.

Justice Harman found that a constructive trust had indeed arisen, based on the principles of unconscionability and the parties' common intention regarding the property. The Court applied established equitable principles concerning resulting and constructive trusts, examining the conduct of the parties, their financial contributions, and the overall context of their dealings. The reasoning focused on preventing one party from unconscionably retaining the benefit of the property to the detriment of the other. The Court ultimately made orders to give effect to the established equitable interests.

Orders

Orders of the court

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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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