FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMBROSE & SELDORS | [2020] FCCA 3096 |
| Catchwords: FAMILY LAW – Interim parenting – where each parent makes serious allegations about the other allegedly evidenced by independent documents – family violence – mental health concerns. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 Insley & Insley [2018] FCCA 438 |
| Applicant: | MS AMBROSE |
| Respondent: | MR SELDORS |
| File Number: | WOC 459 of 2020 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 30 September 2020 |
| Date of Last Submission: | 30 September 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 1 October 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Five Islands Legal |
| Counsel for the Respondent: | Mr Guterres |
Solicitors for the Respondent: | Hanna Lawyers |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Wollongong |
ORDERS
Interim Orders be made in accordance with the document marked “A” dated this day 1 October 2020 and attached hereto.
Pending further order, the Father be restrained from audio or video recording any interactions he has with the children X (born in 2017) and Y (born in 2019) (‘the children’).
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 72 hours’ notice by application to the Court in Chambers in appropriate circumstances.
The matter be adjourned to 29 January 2021 at 11:30am for Mention.
“A”
Ambrose & Seldors WOC 459/2020
Interim Orders proposed by the ICL 30 September 2020
Live with and spend time with arrangements
That children X born in 2017 and Y born in 2019 (“The Children”) live with the Mother.
That the children spend time with the Father for a minimum of 2 hours each fortnight supervised by B Contact Centre service (with the location of the B Contact Centre service to be nominated by the Mother), on such days and times as nominated by B Contact Centre.
To facilitate the Father spending time with the children pursuant to Order 2, the Mother and Father are to:
3.1 Contact B Contact Centre within 48 hours of the making of these Orders and make an application for B Contact Centre’s supervised children’s contact service;
3.2 Provide all information and complete all necessary paperwork as may be required by B Contact Centre;
3.3 Attend any intake or assessment appointments as may be requested by B Contact Centre on such days and times as nominated by B Contact Centre; and
3.4 Comply with any other reasonable request or direction of B Contact Centre for the purpose of implementing these Orders.
To facilitate the Father spending time with the children pursuant to Order 2, the Mother is to:
4.1 Ensure that the children attend any intake or assessment appointments as requested by…
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- AMBROSE & SELDORS [2020] FCCA 3096
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- [2020] FCCA 3096
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CaseChat Overview and Summary
The court was required to determine the interim parenting orders, including live with and spend time arrangements for the children, communication protocols between the parents, and specific restraints to be imposed on each parent. The court also needed to consider the role of the Independent Children’s Lawyer and the involvement of various support services and medical professionals.
The court made interim orders that the children live with the Mother and spend time with the Father for a minimum of two hours each fortnight, supervised by a nominated contact centre. The Father was ordered to bear the costs of supervised contact, and both parents were directed to cooperate with the contact centre. The Mother was to facilitate communication between the children and the Father, and specific protocols were established for non-urgent and emergency communications. The Father was restrained from audio or video recording interactions with the children and from attending within 100 metres of the Mother's residence or the children's childcare facility without prior consent. Both parents were restrained from making negative comments about the other parent to or in the presence of the children. The Mother was ordered to attend upon a Dr D and provide reports to the Father and the Independent Children’s Lawyer, and to continue engaging with E Families. The Father was ordered to continue psychological treatment.
Orders
Orders of the court
1.
Interim Orders be made in accordance with the document marked “A” dated this day 1 October 2020 and attached hereto.
2.
Pending further order, the Father be restrained from audio or video recording any interactions he has with the children X (born in 2017) and Y (born in 2019) (‘the children’).
3.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
4.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 72 hours’ notice by application to the Court in Chambers in appropriate circumstances.
5.
The matter be adjourned to 29 January 2021 at 11:30am for Mention.
“A”
Ambrose & Seldors WOC 459/2020
Interim Orders proposed by the ICL 30 September 2020
Live with and spend time with arrangements
1.
That children X born in 2017 and Y born in 2019 (“The Children”) live with the Mother.
2.
That the children spend time with the Father for a minimum of 2 hours each fortnight supervised by B Contact Centre service (with the location of the B Contact Centre service to be nominated by the Mother), on such days and times as nominated by B Contact Centre.
3.
To facilitate the Father spending time with the children pursuant to Order 2, the Mother and Father are to:
3.1 Contact B Contact Centre within 48 hours of the making of these Orders and make an application for B Contact Centre’s supervised children’s contact service;
3.2 Provide all information and complete all necessary paperwork as may be required by B Contact Centre;
3.3 Attend any intake or assessment appointments as may be requested by B Contact Centre on such days and times as nominated by B Contact Centre; and
3.4 Comply with any other reasonable request or direction of B Contact Centre for the purpose of implementing these Orders.
4.
To facilitate the Father spending time with the children pursuant to Order 2, the Mother is to:
4.1 Ensure that the children attend any intake or assessment appointments as requested by B Contact Centre on such days as nominated by B Contact Centre (including on school days); and
4.2 Ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by B Contact Centre.
5.
The Father is to bear any costs of B Contact Centre’s supervised contact service (at the relevant concession or non-concession rate) and any costs for intake assessments or appointments attended by the children and the Mother and Father are to bear any costs associated with their initial intake assessments.
6.
These Orders operate as the authorisation of both parents to B Contact Centre to provide the Independent Children’s Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the process of supervised time that the Independent Children’s Lawyer may require.
7.
In the event that B Contact Centre cannot provide a supervised contact service to the parents and / or service is refused or sought to be varied, the Independent Children’s Lawyer has liberty to seek a re-list of this matter upon 7 days-notice to the other parties and to the Court.
8.
That in the event that B Contact Centre is not able to offer the Father a place for supervised time within a two month period from the date of these Orders and the Father is placed on a waiting list, then the children are to spend supervised time with the Father through C Contact Centre until such time that B Contact Centre is able to offer the Father a Supervised contact service.
9.
In the event that the Father’s time with the children is to be supervised by C Contact Centre, the children are to spend each Saturday with the Father from 10:00am until 12:00pm at a venue agreed between the parents but failing agreement, as nominated by C Contact Centre.
10. The Father is to pay the cost of supervision in accordance with Order 9.
11. The Mother and Father are to comply with all reasonable rules and requests and directions of the staff of C Contact Centre for the purpose of supervised time in accordance with Order 9.
12. These Orders operate as authorisation of both parents to C Contact Centre to provide the Independent Children’s Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the process of supervised time that the Independent Children’s Lawyer may require.
Communication
13. The Mother is to facilitate communication between the children and the Father each Tuesday and Thursday at 5.00pm either by telephoning or video calling the Father, at the Mother’s discretion.
14. That the Mother and Father shall communicate with each other for all non-urgent matters concerning the children via text message or email.
15. That the Mother and Father shall communicate with each other for any matters of emergency via telephone.
16. The Mother and Father are to keep each other advised of:
16.1 Any significant medical problems, illness or injury suffered by the children whilst in their care;
16.2 Any occasion that the children are hospitalised whilst in their care;
16.3 Any treatment plan or regime recommended by either of the children’s treating medical professional;
16.4 Any medication; including any dose that has been prescribed for the children that needs to be administered by the other parent; and
16.5 Their contact telephone number and email address.
17. The Mother is to ensure that the Father and Independent Children’s Lawyer are kept informed of any specialist medical appointments for the children with any Medical Specialist or Psychiatrist or with any therapeutic health service provider (including but not limited to a Counsellor, Psychologist, Occupational Therapist, Speech Therapist or other therapeutic specialist.
18. That the Mother is to keep the Independent Children’s Lawyer advised about any agency or support service the Mother or the children are engaged with from time to time.
19. That this Order authorises the Father to receive copies of any assessments and reports about the children prepared by a Medical Specialist or Psychiatrist or by any therapeutic health service provider as set out in Order 17.
20. That this Order authorises the Independent Children’s Lawyer to contact the children’s Doctor (including but not limited to a GP, Medical Specialist or Psychiatrist) and any therapeutic or health service provider (including but not limited to a Counsellor, Psychologist, Occupational Therapist, Speech Therapist or other Therapeutic Specialist and obtain any relevant information, assessments and reports with respect to the children.
21. That this Order authorises the Independent Children’s Lawyer to obtain information regarding the children’s educational progress from the school / childcare facility attended by the children.
22. That this Order authorises the Independent Children’s Lawyer to contact Dr D and to receive from Dr D information regarding the mother’s treatment and progress.
23. That this Order authorises the Independent Children’s Lawyer to contact E Families or any other support agency that the Mother and children might be engaged with from time to time so as to receive from E Families or any other support agency information about the Mother’s or children’s engagement and progress with the agency or support service.
Restraints
24. Pursuant to section 68B of the Family Law Act 1975, the Father is restrained by injunction from:
24.1 Going within 100 metres of the Mother’s residence; and
24.2 From attending any childcare facility that the children might be attending from time to time without the prior written consent or the Mother or further Order; and
24.3 From discussing the following things with the children during telephone or video calls with the children in accordance with Order 13:-
a. These Court proceedings;
b. Restrictions on the Father because of any supervised time;
c. Details about where the children might be living such as their suburb or address;
d. Details about where the children might be attending childcare;
e. Which parent the children would like to live with;
25. Pursuant to section 68B of the Family Law Act 1975, the Mother and Father are restrained by injunction from making any negative, critical, belittling and/or derogatory comments in relation to the other parent or members of the other parent's family or household (including, but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or within hearing of the children.
Programs / Support
26. That within 14 days from the date of these Orders, the Mother is to make an appointment to attend upon Dr D.
27. The Mother is to advise the Independent Children’s Lawyer of the date and time of her appointment with Dr D as required under Order 26.
28. The Mother is to obtain from Dr D a letter setting out the Mother’s current treatment and medication, together with any future recommendation Dr D may have in relation to the Mother’s treatment, medication and frequency of attendance upon Dr D.
29. The Mother is provide a copy of the letter received from Dr D in accordance with Order 28 to the Father and to the Independent Children’s Lawyer.
30. The Mother is to continue to engage with E Families for as long as required by E Families.
31. The Mother authorise the Independent Children’s Lawyer to discuss the Mother’s progress with Dr D and E Families.
32. The Mother is to notify the Independent Children’s Lawyer and the Father if E Families plan to cease supporting the Mother or cease supporting the Mother.
33. That the Father receive psychological treatment as per referral made by his GP under Mental Health Care Plan dated 11 June 2020.
34. That the Father provide the name of his treating professional as required under Order 33 to the Mother and to the Independent Children’s Lawyer.
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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