Mears & Hilton (No 2) - [2023] FedCFamC2F 166

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mears & Hilton (No 2) [2023] FedCFamC2F 166

File number: WOC 1213 of 2021

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 21 February 2023

Catchwords: FAMILY LAW – CHILDREN – Where the children are aged 3 and 4 and have spent limited and irregular time with the father – Where the mother proposes sole parental responsibility and no time for the father due to his lack of commitment to time with the children and the emotional distress caused to the young children – Where it is not in the best interest of the children for the parties to have equal shared parental responsibility – Allegations of family violence including coercive and controlling behaviour – Supervised time ordered for three months between the children and the father until the father completes a parenting course – Where there is a sunset clause for the spend time orders in the event that the father fails to consistently spend time with the children.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
A v A (1998) FLC 92-800; [1998] FamCA 25

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

Carlson & Fluvium [2012] FamCA 32

Cotton & Cotton (1983) FLC 91-330

Director-General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

G & C [2006] FamCA 994

Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69; [1988] HCA 68

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mears & Hilton [2022] FedCFamC2F 1793

Division: Division 2 Family Law

Number of paragraphs: 188

Date of last submissions: 13 January 2023

Date of hearing: 8–9 December 2022

Place: Heard in Wollongong, delivered in Sydney

Solicitor for the Applicant: Litigant in person (8-9 December 2022), GPG Lawyers (13 January 2023)

Counsel for the Respondent: Mr Blank

Solicitor for the Respondent: Culleton Lawyers Pty Ltd
ORDERS

WOC 1213 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MEARS

Applicant

AND:
MS HILTON

Respondent

order made by:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

21 february 2023

THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the children, namely X born in 2018 and Y born in 2019 (“the children”).
2.The children shall live with the mother.
3.Within 14 days of the date of these orders, the mother is to nominate three proposed supervision services for the purpose of Orders 6, 7 and 8.
4.Within a further 7 days of Order 3, upon receipt of the proposed supervision services from the mother, the father is to choose one supervision service from that list.
5.For the purpose of Orders 6, 7 and 8, both parties do…

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 Mears & Hilton (No 2)

Details

AGLC: Mears & Hilton (No 2) [2023] FedCFamC2F 166
Case: [2023] FedCFamC2F 166
Decision Date

CaseChat Overview and Summary

This matter concerns the parenting arrangements for X and Y, who were born in 2018 and 2019 respectively. The parties, Mr Mears (“the father”) and Ms Hilton (“the mother”) separated in November 2020 and had a relatively short relationship. The father has spent limited and irregular time with the children, leading to the parties’ eldest daughter experiencing emotional distress. The father’s commitment to spending time with the children is in doubt. In light of the risk of emotional harm to the children if the father continues to engage spasmodically with the children, the court made orders for the children to spend time with the father, which will sunset if the opportunity is not taken up. The mother was found to be a truthful witness and was satisfied to be the sole parent with parental responsibility. The father was found to have engaged in coercive and controlling behaviour towards the mother. The court found that the father’s evidence was inconsistent and self-serving and accepted the mother’s evidence in preference to that of the father. The court found that the father’s lack of commitment to spending time with the children, his failure to attend the compliance and readiness hearing, and his eleventh-hour filing of evidence, were consistent with the mother’s contention that the father lacks a genuine commitment to pursuing orders that would provide for the children to spend regular and consistent time with him. The court ordered that the children shall spend time with the father for up to four hours per fortnight and be supervised by the nominated supervision service at a time that can be accommodated by the service. The court ordered that the mother shall have sole parental responsibility for the children, and that the children shall live with the mother. The court ordered that the father shall meet the cost of services provided by the chosen supervision service and, if retained, the services to supervise changeover. The court ordered that the father shall communicate with the children by way of facetime and/or telephone on a regular and consistent basis.

Orders