Pitman and Hynes and Anor (No. 2) - [2018] FamCA 1015

FAMILY COURT OF AUSTRALIA

PITMAN & HYNES AND ANOR (NO. 2)

[2018] FamCA 1015

FAMILY LAW – CHILDREN – Interim – where there is a current child welfare order – where the mother seeks orders for time with the children and equal shared parental responsibility – where the father, the Department and the ICL seek orders for no contact with the mother and the father to have sole parental responsibility and a s 68B injunction order against the mother – where the Court gives weight to the expressed wishes of the teenage children – orders made in the best interests of the children effective from the expiration of the child welfare order for the father to have sole parental responsibility and for the children to communicate with the mother by telephone as they wish ‑ order made pursuant to s 68B.

Family Law Act 1975 (Cth) ss 60CC, 68B, 69ZK

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637

APPLICANT:

Ms Pitman

RESPONDENT:

Mr Hynes

INTERVENOR:

Department of Child Safety, Youth And Women

FILE NUMBER:

WOC

772

2011

DATE DELIVERED:

5 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

27 November 2018

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT APPEARED IN PERSON

COUNSEL FOR THE INTERVENOR:

Mr J Linklater-Steele

INDEPENDENT CHILDREN’S LAWYER:

Mr D Carter
Carter Farquar Mediation & Family Law

Orders

That commencing upon the expiry of the current child welfare orders made by the Children’s Court of Queensland on 11 December 2017:
(a)The children, X born … 2003 and Y born … 2004 (“the children”) live with the father in the D Town area;
(b)The children shall spend no physical time with the mother;
(c)The children shall communicate with the mother strictly on the following terms:
(i)All telephone calls are to be initiated by the children (or one of them);
(ii)The father shall provide the children with the mother’s current mobile phone number;
(iii)The father shall ensure that the children’s mobile phone, when used to telephone the mother, shall not reveal the children’s telephone number (that is caller ID shall be disabled);
(iv)The father shall encourage the children to telephone the mother at least on Christmas Day, the mother’s birthday; Mother’s Day and the children’s birthday; and
(v)All telephone calls shall be unrecorded.
(d)The parents shall not discuss with, or in the presence of the children, these proceedings or other issues of adult conflict including the Children’s Court orders;
(e)Pursuant to s 68B of the Family Law Act 1975, and for the welfare of the children, the mother is restrained and an injunction issues restraining the mother from approaching the children at any time, including at their usual residence, at their school and when they are in public settings; and
(f)The father have sole parental responsibility for major long term issues of the children.
That pursuant to Rule 11.17 of the Family Law Rules 2004, these proceedings be transferred to the Family Court of Australia…

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.

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Details

Case: [2018] FamCA 1015
Decision Date: 5 December 2018

CaseChat Overview and Summary

In *Pitman and Hynes and Anor (No. 2)*, Baumann J of the Family Court of Australia considered orders concerning the children X and Y, born in 2003 and 2004 respectively. The dispute involved the living arrangements and communication between the children and their mother, following existing child welfare orders made by the Children’s Court of Queensland.

The court was required to determine the terms of future living arrangements for the children, the extent and nature of their contact with the mother, and the allocation of parental responsibility. Specifically, the court had to decide whether the children should live with the father, the conditions under which they could communicate with the mother, and whether any restrictions should be placed on the mother's contact with the children. The court also considered the issue of sole parental responsibility for major long-term issues.

Baumann J ordered that commencing upon the expiry of the current child welfare orders, the children would live with the father in the D Town area and spend no physical time with the mother. Communication was to be initiated by the children via telephone, with the father facilitating this by providing the mother's number and ensuring caller ID was disabled. The father was also to encourage communication on significant dates, and all calls were to be unrecorded. The parents were prohibited from discussing the proceedings or adult conflicts in the children's presence. Crucially, pursuant to s 68B of the *Family Law Act 1975*, an injunction was issued restraining the mother from approaching the children in any setting, including their residence, school, and public places, for their welfare. The father was granted sole parental responsibility for major long-term issues. The proceedings were subsequently transferred to the Family Court of Australia Sydney Registry.

Orders

Orders of the court

That commencing upon the expiry of the current child welfare orders made by the Children’s Court of Queensland on 11 December 2017:

(a) The children, X born … 2003 and Y born … 2004 (“the children”) live with the father in the D Town area;

(b) The children shall spend no physical time with the mother;

(i) All telephone calls are to be initiated by the children (or one of them);

(ii) The father shall provide the children with the mother’s current mobile phone number;

(iii) The father shall ensure that the children’s mobile phone, when used to telephone the mother, shall not reveal the children’s telephone number (that is caller ID shall be disabled);

(iv) The father shall encourage the children to telephone the mother at least on Christmas Day, the mother’s birthday; Mother’s Day and the children’s birthday; and

(v) All telephone calls shall be unrecorded.

(d) The parents shall not discuss with, or in the presence of the children, these proceedings or other issues of adult conflict including the Children’s Court orders;

(e) Pursuant to s 68B of the Family Law Act 1975, and for the welfare of the children, the mother is restrained and an injunction issues restraining the mother from approaching the children at any time, including at their usual residence, at their school and when they are in public settings; and

(f) The father have sole parental responsibility for major long term issues of the children.

That pursuant to Rule 11.17 of the Family Law Rules 2004, these proceedings be transferred to the Family Court of Australia Sydney Registry.

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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