McGowan and Hahn - [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:

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

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 [2018] FCCA 2626
Case: [2018] FCCA 2626
Decision Date: 31 August 2018

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