FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acquafredda & Qurbonov [2024] FedCFamC1F 609
File number(s): PAC 1542 of 2019 Judgment of: CURRAN J Date of judgment: 10 September 2024 Catchwords: FAMILY LAW – PARENTING – Where after hearing evidence from single expert parties reached consent about live with and decision making orders – Where the children have been living on a week about arrangement – Where orders made for week about living arrangement to continue by consent – Where issues in dispute were limited to changeover, therapies and extra-curricular activities, the extent of the father’s psychological treatment, and who should hold the passports Legislation: Australian Passports Act 2005 (Cth), s 11
Family Law Act 1975 (Cth), Pt VII, ss 4, 60B, 60CA, 60CC, 61C, 61CA, 61D, 64B, 67ZC
Cases cited: Jacks & Samson (2008) FLC 93-387; [2008] FamCAFC 173
Oberlin & Infeld [2021] FamCAFC 66
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 4-10 September 2024 Place: Sydney Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Jacqui Griffin Mobile Solicitor Counsel for the Respondent: Ms Meares Solicitor for the Respondent: Peerzada & Associates Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers ORDERS
PAC 1542 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ACQUAFREDDA
Applicant
AND: MS QURBONOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
10 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
Decision Making
1.The parties shall have joint decision making responsibility for the children X born 2012 and Y born 2013 in respect of all decisions concerning the major long-term issues relating to the care and welfare of the children.
Live with arrangements
2.The children shall live with the parties on a week about basis as follows:
(a)With the mother, each alternate week from the conclusion of school on Friday (or 3.00 pm on non-school days) until the conclusion of school the following Friday (or 3.00 pm on non-school days), with such time to commence on Friday 20 September 2024 following the making of these Orders.
(b)With the father, each alternate week from the conclusion of school on Friday (or 3.00 pm on non-school days) until the conclusion of school the following Friday (or 3.00 pm on non-school days), with such time to commence on Friday 13 September 2024.
(c)At other times and with variations of the above as agreed between the parties in writing.
3.Notwithstanding any other order, the children shall spend time with the parties on the following occasions:
(a)In even numbered years - With the mother from 4.00 pm Easter Saturday until 4.00 pm Easter Sunday and with the father from 4.00 pm Easter Sunday until 4.00 pm Easter Monday.
(b)In odd numbered years – With the father from 4.00 pm Easter Saturday until 4.00 pm Easter Sunday and with the mother from 4.00 pm Easter Sunday until 4.00 pm Easter Monday.
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- Acquafredda & Qurbonov [2024] FedCFamC1F 609
- Case
- [2024] FedCFamC1F 609
- Decision Date
CaseChat Overview and Summary
The court addressed several key issues. Firstly, it clarified the conditions under which parents could attend their children's therapeutic activities. Secondly, it established the protocols for changeovers, specifying a neutral location and the requirement for both parents to ensure all necessary items were available. Thirdly, the court outlined the responsibilities of both parents in managing the children's health care, including regular communication and sharing of medical information. Fourthly, it delineated the procedures for travel, ensuring that both parents had the right to apply for passports but specifying the mother as the custodian when not in use. Lastly, the court issued restraining orders to prevent any form of parental conflict in the presence of the children and to ensure respectful communication between the parents.
The court's decision upheld the consensus reached by the parents while addressing the specific issues in dispute. The orders made by the court included provisions for changeover logistics, communication protocols, medical and therapeutic care, school attendance, and travel arrangements. The court commended the parents for their ability to reach agreements on most matters, which facilitated a resolution that was in the children's best interest. The final orders reflected a balanced approach, ensuring the children's welfare and stability while accommodating the parents' commitments.
Orders
Orders of the court
PAC 1542 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR ACQUAFREDDA
Applicant
AND:
MS QURBONOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
10 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
Decision Making
1. The parties shall have joint decision making responsibility for the children X born 2012 and Y born 2013 in respect of all decisions concerning the major long-term issues relating to the care and welfare of the children.
Live with arrangements
2. The children shall live with the parties on a week about basis as follows:
(a) With the mother, each alternate week from the conclusion of school on Friday (or 3.00 pm on non-school days) until the conclusion of school the following Friday (or 3.00 pm on non-school days), with such time to commence on Friday 20 September 2024 following the making of these Orders.
(b) With the father, each alternate week from the conclusion of school on Friday (or 3.00 pm on non-school days) until the conclusion of school the following Friday (or 3.00 pm on non-school days), with such time to commence on Friday 13 September 2024.
(c) At other times and with variations of the above as agreed between the parties in writing.
3. Notwithstanding any other order, the children shall spend time with the parties on the following occasions:
(a) In even numbered years - With the mother from 4.00 pm Easter Saturday until 4.00 pm Easter Sunday and with the father from 4.00 pm Easter Sunday until 4.00 pm Easter Monday.
(b) In odd numbered years – With the father from 4.00 pm Easter Saturday until 4.00 pm Easter Sunday and with the mother from 4.00 pm Easter Sunday until 4.00 pm Easter Monday.
(c) On the weekend of Mother’s Day if the children are not already spending time with the mother, from after school on Friday (or otherwise 3.00 pm on a non‑school day) to before school (or otherwise 9.00 am on a non-school day) on Monday.
(d) On the weekend of Father’s Day, if the children are not already spending time with the father, from after school on Friday (or otherwise 3.00 pm on a non‑school day) to before school (or otherwise 9.00 am on a non-school day) on Monday.
(e) In odd numbered years – With the father from 4.00 pm Christmas Eve until 4.00 pm on Christmas Day and with the mother from 4.00 pm Christmas Day until 4.00 pm on Boxing Day.
(f) In even numbered years – With the mother from 4.00 pm Christmas Eve until 4.00 pm on Christmas Day and with the father from 4.00 pm Christmas Day until 4.00 pm on Boxing Day.
Make up time
4. Where one of the parents has retained the children (or either of them), hereinafter referred to as the “retaining parent”, for longer than is provided for in these orders, the children shall live with the other parent, hereinafter referred to as the “other parent”, for extra time for the same amount of time that the children (or either of them) were retained by the retaining parent, until the retention time is made-up, on the next occasion that the children are to live with the other parent and each occasion thereafter (if relevant) and the time that the children living with the retaining parent shall be correspondingly reduced.
5. Order 4. does not prevent the other parent from prosecuting contravention proceedings against the retaining parent.
Changeover
6. For the purposes of changeover that does not occur at the children’s school, unless otherwise agreed, the parent or their nominee shall meet at Suburb B McDonald’s or other location as agreed between the parties in writing.
7. Both parents shall ensure that all uniforms, bags, laptops, books and school related belongings are made available at changeover, as well as any equipment, stationery, uniforms or property necessary to facilitate the children's participation in any extra‑curricular or school related or vocational activities, whilst the children are in the care of either party.
NDIS
8. By this order, the mother and father shall do all such things and acts to provide each other the following:
(a) All information and details in relation to the children’s NDIS funding and involvement in the NDIS scheme;
(b) All information, including but not limited to any reports and diagnosis from the children’s treating medical practitioners.
(c) Any information and/or advice received from any of the children’s service providers and third party providers.
(d) All details from any of the children’s extra-curricular activities.
(e) The mother and father are to ensure that they are respectful in all communication they have with any of the children’s NDIS service providers, medical practitioners and any other third parties that provide services for the children.
Medical
9. Notwithstanding any other order and unless otherwise agreed between the parties in writing, the children’s General Practitioner (GP) shall be C Medical Centre situated at D Street, Suburb B NSW, and the parties shall do all acts and things to ensure the children’s continued attendance at the practice.
10. Notwithstanding any other order and unless otherwise agreed between the parties in writing, the children's dentist shall be Dr E of F Dental Practice situate at G Street, Suburb H NSW, and the parties shall do all acts and things to ensure the children's attendance at the practice for the purposes of dental issues which are appropriate for assessment/treatment by a dentist.
11. Notwithstanding any Order and unless otherwise agreed between the parties in writing, the children's paediatrician shall be Dr J of K Medical Centre situated at L Street, Suburb M NSW and the parties shall do all acts and things to ensure the children's continued attendance and compliance with the recommendations of Dr J.
12. The parents are both restrained from having the children attend upon any other paediatrician, therapist, counsellor, psychologist unless as directed by children’s health care professionals or as agreed between the parents in writing.
13. Each parent shall ensure that:
(a) The other parents is given no less than 14 days’ notice in writing of any appointments made for the children with any health care professional other than their GP or in the case of an emergency;
(b) A copy of any report relating the children from any paediatrician, therapist, counsellor, psychologist or other health care professional is provided to the other parent within 7 days of receipt of such report.
14. In the event of the child/ren suffering a medical emergency requiring medical attention while spending time or living with either parent:
(a) The other parent is to be notified as soon as practicable.
(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child/ren attends as soon as practicable.
(c) The medical practitioner or facility is to be advised that both parents have access to the child/ren medical records and the information obtained with them upon request.
School and Extra-curricular
15. The parents do all acts and things to enrol the children at N School, for attendance from Year 7 until Year 12, unless otherwise agreed between the parents in writing.
16. These orders shall act as authority for the children’s school to provide to both parents with copies of the children’s school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
Communication
17. The children are to communicate by telephone with the parent they are not living with between 6.30pm until 7.00pm each Monday and Wednesday and any other day that the children shall reasonably request and for this purpose:
(a) The parent the children are not living with, is to contact the children on their mobile telephone(s);
(b) That the children are permitted to have their mobile telephones in their possession at the times above for the purpose of accepting the telephone call; and;
(c) That the parents shall not actively participate in the other parents’ conversation with the children and shall afford the children privacy to take the call, in so far as it is practicable to do so.
18. The mother and father shall communicate in relation to the children by email except in the case of emergency when they will communicate by text message.
19. Each parent be permitted to communicate directly with the children’s schools, sporting bodies and medical practitioners and allied health professionals to obtain any necessary information and or documents about the child’s progress and this order shall constitute sufficient authority for such communication.
Therapy
20. Within 21 days from the date of these orders, the mother shall engage the services of a suitably qualified clinical psychologist for a minimum of 20 individual sessions with a focus on Cognitive Behavioural Therapy AND for this purpose, the mother shall have leave to provide to her clinical psychologist a copy of the two reports authored by Dr O, Single Expert dated 16 July 2020 and 2 August 2022 and a copy of these orders.
21. The mother shall authorise her treating therapist the contact Dr O to communicating with him about his Single Experts Reports and the assessments conducted therein to assist the therapist in therapy formulation.
P Organisation Courses
22. Within 12 months from the date of these orders the parents respectively shall watch each of the following online videos produced by P Organisation and discuss the content of each of these webinars with their psychologist:
[List omitted]
Contact details
23. Each parent shall inform one another in writing within 48 hours of at least one contact telephone number, email address and their residential address and shall advise one another within 48 hours in writing should there be any change to these contact details.
Restraints
24. Without admission, the parents, their servants and agents be hereby restrained by injunction from:
(a) Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the children;
(b) Abusing, threatening, stalking rebuking or otherwise denigrating the other party and/or the children;
(c) Communicating any information intended for the other parent through the children; and
(d) Causing the children to be a medium in any way to adult members between the mother and father or between the mother and father and any other person;
(e) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings with any third parties;
(f) Consuming illicit substances or prescription medication beyond the recommended dose or becoming intoxicated beyond the legal blood alcohol limit for driving, whilst they have the children in their care and the 24-hour period prior; and
(g) Smoking in the presence of the children.
25. Both parents shall be restrained from attending each other’s residential addresses and workplace unless otherwise agreed between the parents in writing.
26. The parents are restrained by way of injunction from:
(a) Recording phone or video communications between the children and the other parent.
(b) From having a smart home device in the bathroom or the children’s bedrooms.
(c) From recording the children or the other parent at any time without their consent.
Travel
27. The mother and father shall be permitted to apply for and renew an Australian Passport for the children pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth).
28. Each parent shall be permitted to travel outside of Australia during their time with the children in accordance with these orders on the basis that the travelling parent provides to the non-travelling not less than four weeks prior to the proposed travel, copies of the following:
(a) Itinerary inclusive of all flight numbers/transport information and accommodation details; and
(b) A telephone contact number or email where the child and travelling parent can be contacted during the overseas travel.
(c) Copy of travel insurance for each of the children for the period of travel.
29. For the purposes of order 28, the travelling parent must not propose to take the children to a country listed on the Australian Government Smart Traveller website with a do not travel alert and must not propose to take the children to a country which is not a signatory to the Hague (Child Abduction) Convention.
ON A FINAL BASIS THE COURT ORDERS THAT:
Changeover
30. Both parties provide the children with their own clothes, uniforms, own devices and other things as required when the children live with each parent and shall ensure that any things or items belonging to the other parent’s home are returned at the next changeover.
NDIS and Medical
31. Notwithstanding any order and unless otherwise agreed between the parents in writing, the parents shall do all things necessary and reasonable to ensure that the children’s NDIS plans are complied with.
32. Notwithstanding any order and unless otherwise agreed between the parents in writing, both parents respectively are permitted to participate in the creation of NDIS plans for the children, as arranged with the NDIS.
33. The parents respectively shall use their best endeavours to follow the recommendations provided by the children’s medical practitioners, dentist, counsellor and social workers and the parents respectively shall be respectful in all communications and dealings with such third parties.
34. These orders shall act as authority for any medical practitioner, dentist, counsellor, NDIS provider or service, or other allied health professional who treats the children to provide information to both parents upon request to the extent permitted by law, and both parents shall be responsible for requesting such information directly from the health care providers and the parent who makes such request shall be responsible for the cost of such request.
35. The parties shall do all acts and things necessary to work with and comply with the NDIS providers including but not limited to support workers, support coordinators, local coordinators, any of the works involved in the NDIS activities and therapeutic treatments and use their best endeavours to comply with the NDIS plans.
School and Extra-Curricular
36. The parents shall ensure that the children attend all school excursions, camps, and other activities provided by the school or high school.
37. The mother and father are both entitled to attend any extra-curricular activity that the children attend or other events that parents are invited to attend and both parents shall be restrained by injunction from approaching the other parent during their attendance at the extra-curricular activity and/or school event.
38. The parties shall ensure the children’s continued participation in all extra‑curricular/vocational and therapeutic activities which the children currently participate in.
39. Neither parent shall enrol the children in any extra-curricular activity or other arrangements that would require participation of the children during the time that they will be with the other parent, without the written agreement of the other parent.
Therapy
40. Within 21 days from the date of these orders, the father shall engage the services of a suitably qualified clinical psychologist for a minimum of nine individual sessions with a focus on understanding emotions and learning alternative emotion regulation strategies AND for this purpose, the father shall have leave to provide to his clinical psychologist a copy of the two reports authored by Dr O, Single Expert dated 16 July 2020 and 2 August 2022 and a copy of these orders.
Travel
41. The mother shall retain the children’s passports at all times when not travelling with the father.
42. The mother must provide the children's passports to the father within seven days of being notified of the intended travel, and the father is to return the children's passports to the other parent within seven days of his return from overseas.
Leave to ICL
43. The ICL is granted leave to provide to the Department of Communities and Justice and NSW Police a copy of these orders and a copy of the two reports authored by Dr O, Single Expert dated 16 July 2020 and 2 August 2022, and request that they be added to their respective electronic databases for any future reference.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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