Shearer and Amhurst - [2016] FCCA 2138

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEARER & AMHURST

[2016] FCCA 2138

Catchwords:
FAMILY LAW – Parenting – children aged 7 and 3 – limited relationship between older child and father – younger child with high needs – no relationship between younger child and father – high conflict between parents and extended families – father’s continued drug use – capacity of each parent – attitudes of each parent – risk of harm to children – children to live with mother – children to spend no time with father – children’s surnames.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68B

Cases cited:

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
Hollister v Gosselin [2016] FamCA 759
Janssen & Janssen (No.2) [2016] FamCA 796
M & M (1988) 166 CLR 69
MRR & GR [2010] HCA 4
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Nikolakis & Nikolakis [2010] FamCAFC 52

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Starr & Duggan [2009] FamCAFC 115

Applicant:

MS SHEARER

Respondent:

MR AMHURST

File Number:

PAC 2661 of 2013

Judgment of:

Judge Obradovic

Hearing dates:

9, 10 and 11 August 2016

Date of Last Submission:

11 August 2016

Delivered at:

Parramatta

Delivered on:

11 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr Schroder

Solicitors for the Applicant:

John Stonham & Co

Counsel for the Respondent:

Mr Yakenian

Solicitors for the Respondent:	Yakenian Solicitors
Counsel for the Independent Children's Lawyer:	Mr Grew
Solicitors for the Independent Children's Lawyer:	JPM Legal

ORDERS

All previous parenting orders relating to the children X born (omitted) 2009 and Y born (omitted) 2013 be discharged, except orders 4 and 5 of the Orders made on 21 March 2016.
The father shall not spend time with, nor communicate with, nor attempt to communicate with the children or the mother.
Pursuant to section 68B of the Family Law Act1975, the father shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach the mother or the children by any means whatsoever, including through any third party, and further the father is restrained from:
(a)Attending at, or being within 100 metres of any place of residence of the mother and/or the children at any time;
(b)Attending at, or being within 100 metres of any school, pre-school or any such educational institution attended by the children at any time.
On or before 1 December 2016, and every six months thereafter, the mother shall forward to the father by ordinary pre-paid post to his last known address between one and three current photographs of each child and a brief description of each child’s health, welfare and education.
The parties shall not denigrate the other party in the presence or hearing of the children, and that each party shall ensure that no third party denigrates the other parent in the presence or hearing of the children.
The mother be permitted to change X’s surname…

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 Shearer and Amhurst

Details

AGLC: Shearer and Amhurst [2016] FCCA 2138
Case: [2016] FCCA 2138
Decision Date: 11 October 2016

CaseChat Overview and Summary

In *Shearer and Amhurst*, heard by Judge Obradovic, the court considered a dispute concerning parenting orders for two children, X and Y. The proceedings involved the mother and the father, with the court ultimately making significant orders regarding the children's living arrangements, the father's contact with them, and the mother's ability to change the children's surname.

The primary legal issues before the court were the extent of the father's future contact with the children and the mother, and whether the mother should be permitted to change the children's surname. The court was required to determine appropriate orders for the children's welfare and safety, considering the existing orders which granted the mother sole parental responsibility and stipulated that the children live with her.

Judge Obradovic reasoned that the father should be entirely restrained from spending time with, communicating with, or attempting to communicate with the children or the mother, including through third parties. This was underpinned by section 68B of the *Family Law Act 1975*, which allows for restraining orders to protect a person or child. The court also ordered that the father be prohibited from attending within 100 metres of the mother's or children's residences or the children's educational institutions. Notwithstanding these stringent restrictions, the court ordered that the mother provide the father with photographs and brief updates on the children's health, welfare, and education every six months. Furthermore, the court permitted the mother to hyphenate the children's surname with her own, Shearer. The court also included standard provisions regarding the consequences of contravening the orders and the prohibition of denigration of either parent.

Orders

Orders of the court

All previous parenting orders relating to the children X born (omitted) 2009 and Y born (omitted) 2013 be discharged, except orders 4 and 5 of the Orders made on 21 March 2016.

The father shall not spend time with, nor communicate with, nor attempt to communicate with the children or the mother.

Pursuant to section 68B of the Family Law Act 1975, the father shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach the mother or the children by any means whatsoever, including through any third party, and further the father is restrained from:

(a) Attending at, or being within 100 metres of any place of residence of the mother and/or the children at any time;

(b) Attending at, or being within 100 metres of any school, pre-school or any such educational institution attended by the children at any time.

On or before 1 December 2016, and every six months thereafter, the mother shall forward to the father by ordinary pre-paid post to his last known address between one and three current photographs of each child and a brief description of each child’s health, welfare and education.

The parties shall not denigrate the other party in the presence or hearing of the children, and that each party shall ensure that no third party denigrates the other parent in the presence or hearing of the children.

The mother be permitted to change X’s surname by hyphenating it and the mother’s surname, Shearer.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Remove all outstanding issues from the list of cases awaiting finalisation.

THE COURT NOTES that Orders were made on 21 March 2016 that:

(A) The mother has sole parental responsibility for the children; and

(B) The children live with the mother.

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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