Ravice and Hillon & Anor - [2014] FamCA 2

FAMILY COURT OF AUSTRALIA

RAVICE & HILLON AND ANOR

[2014] FamCA 2

FAMILY LAW – CHILDREN – Best interests – parental responsibility – with whom the child shall live, spend time, and communicate – paternal grandmother a party to proceedings – mother to have sole parental responsibility – no unacceptable risk of harm posed by mother – child to remain living with the mother – paternal grandmother to spend time with the child once a month and have weekly telephone communication, subject to compliance with injunctions

FAMILY LAW – INJUNCTIONS – Children – father abandoned proceedings – serious risk of harm posed by father – father incarcerated for assaults of the mother and paternal grandmother – father has history of substance abuse and poor mental health – restraint of child’s interaction with the father

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B

Aldridge & Keaton (2009) FLC 93-421
Allesch v Maunz (2000) 203 CLR 172
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Jones v Dunkel (1959) 101 CLR 298
Malcolm & Monroe & Anor (2011) FLC 93-460
Marriage of L & T (1999) 25 Fam LR 590
MRR v GR (2010) 240 CLR 461
Taylor v Taylor (1979) 143 CLR 1
Valentine & Lacerra [2013] FamCAFC 53

APPLICANT:

Ms Ravice

1st RESPONDENT:

Mr Hillon

2nd RESPONDENT:

Ms Hillon

INDEPENDENT CHILDREN’S LAWYER:

Mr Haricharan, Hunter Family Law Centre Pty Ltd

FILE NUMBER:

NCC

1748

2012

DATE DELIVERED:

7 January 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

9 & 10 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sharrock

SOLICITOR FOR THE APPLICANT:

Craney Family Solicitors

COUNSEL FOR THE 1ST RESPONDENT:

Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT:

Not Applicable

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bateman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hunter Family Law Centre Pty Ltd

Orders

All former orders relating to the child D, born … December 2010, (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence;
(b)The paternal grandmother’s residence; and
(c)Any school, pre-school, or day-care centre attended by the child.
Subject to written communication occurring in accordance with Order 6 hereof, the parties are restrained from causing or permitting the child to spend time with, remain in the physical presence of, or to communicate orally or in writing with, the father.
The mother and father shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:
(a)By the father being able to send letters, cards, and/or gifts to the child…

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 Ravice and Hillon & Anor

Details

AGLC: Ravice and Hillon & Anor [2014] FamCA 2
Case: [2014] FamCA 2
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered proceedings concerning the child D, born in December 2010. The applicant was the mother, Ms Ravice, and the respondents were the father, Mr Hillon, and the paternal grandmother, Ms Hillon. The dispute centred on the child's residence and parental responsibility, with the father having abandoned his claim to these. The court was tasked with determining the best interests of the child, particularly in light of the risks posed by the father and the competing claims of the mother and paternal grandmother.

The primary legal issues before the court were to determine with whom the child should live, spend time, and communicate, and to allocate parental responsibility. This involved assessing the risks of harm to the child from each of the parties, particularly the father, who had a history of violence, substance abuse, and mental health issues, and was incarcerated for assaults on the mother and paternal grandmother. The court also had to consider the role and involvement of the paternal grandmother in the child's life and ensure that any orders made were in the child's best interests, as mandated by the *Family Law Act 1975* (Cth).

The court found that the father posed a serious risk of harm to the child and had abandoned his proceedings, leading to his exclusion from contention. The mother was found not to pose an unacceptable risk of harm to the child. Applying the principles of the *Family Law Act 1975* (Cth), particularly sections concerning the best interests of the child, the court ordered that the mother have sole parental responsibility and that the child live with her. The father was restrained from approaching the mother's and paternal grandmother's residences and any educational facilities attended by the child.

The court further ordered that the child spend time with the paternal grandmother on a fortnightly basis, with specific arrangements for communication and handover. The father was permitted limited written communication with the child, and the mother and paternal grandmother were restrained from denigrating each other or the father in the child's presence. The court also made orders regarding the exchange of personal information between the mother and paternal grandmother to facilitate compliance with the parenting orders.

Orders