FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anders & Damus (No 5) [2024] FedCFamC2F 198
File number: ADC 4751 of 2022 Judgment of: JUDGE BROWN Date of judgment: 9 February 2024 Catchwords: FAMILY LAW – Ex tempore – parenting arrangements for a child aged 4 years old –allegations of coercive and controlling family violence – enquiry into the best interests of the child – where the parties have very limited capacity to coparent – where the respondent has failed to prosecute the proceedings with due diligence – where the applicant and the Independent Children’s Lawyer submits it is not in the best interests of the child to continue litigation – where the proceedings are to be concluded – matters to be considered Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 4, 60B, 60CC, 60H, 68LA,102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.6
Assisted Reproductive Treatment Act 1988 (SA)
Family Relationships Act 1975 (SA)
Division: Division 2 Family Law Number of paragraphs: 165 Date of last submission/s: 9 February 2024 Date of hearing: 6, 7, 8 November 2023, 7, 8 & 9 February 2024 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: Phoenix Family Law Solicitor for the Respondent: Appeared in person, no appearance on 9 February 2024 Counsel for the Independent Children's Lawyer: Ms James Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 4751 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ANDERS
Applicant
AND: MS DAMUS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.All previous orders are hereby discharged.
2.That the applicant do have sole parental responsibility for the long term health, care and welfare for the child X born in 2019 on the proviso the applicant do initially consult with the respondent as to decisions that are required to be made and do take into consideration the views expressed by the respondent when making any final decision and provide her decision as to same issue in writing to the respondent within 48 hours of making same.
3.That the child live with the Applicant.
4.That the child spend time with the Respondent as follows:
(a)Each alternate weekend from the conclusion of school or kindergarten (or 3pm if a non-school day) Friday until 3pm Sunday (in line with the current alternate weekend regime) commencing 16 February 2024;
(b)In the intervening week from the conclusion of school or kindergarten (or 3pm if a non-school day) Tuesday commencing 13 February 2024 until the conclusion of school or kindergarten (or 3pm if a non-school day) Wednesday unless otherwise agreed by the parties in writing;
(c)As and from when the child commences Primary School in Term 3 2024:
(i)For the second week of each short school holiday period from 3pm on the middle Sunday until 3pm on the last Sunday unless agreed otherwise in writing.
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CaseChat Overview and Summary
The court had to address several key issues, including whether the proceedings should be concluded and, if so, what arrangements would best serve the child's welfare. The court also needed to consider the impact of the respondent's failure to prosecute the proceedings with due diligence. The primary focus was on establishing a parenting plan that ensured the child's safety, stability, and well-being.
Judge Brown determined that concluding the proceedings was in the child's best interests. The court found that continuing litigation would be detrimental to the child, given the limited capacity of the parties to coparent and the allegations of family violence. The court ordered that the applicant would have sole parental responsibility for the child's long-term health, care, and welfare but must consult with the respondent and consider their views on significant decisions. The child would primarily live with the applicant but would have specified times with the respondent, including alternate weekends and certain school holidays. The court also set out detailed provisions for handovers, communication, and the child's education and extracurricular activities. Additionally, the court imposed restrictions on the parents' interactions and travel plans to ensure the child's safety and stability.
Orders
Orders of the court
ADC 4751 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ANDERS
Applicant
AND:
MS DAMUS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1. All previous orders are hereby discharged.
2. That the applicant do have sole parental responsibility for the long term health, care and welfare for the child X born in 2019 on the proviso the applicant do initially consult with the respondent as to decisions that are required to be made and do take into consideration the views expressed by the respondent when making any final decision and provide her decision as to same issue in writing to the respondent within 48 hours of making same.
3. That the child live with the Applicant.
4. That the child spend time with the Respondent as follows:
(a) Each alternate weekend from the conclusion of school or kindergarten (or 3pm if a non-school day) Friday until 3pm Sunday (in line with the current alternate weekend regime) commencing 16 February 2024;
(b) In the intervening week from the conclusion of school or kindergarten (or 3pm if a non-school day) Tuesday commencing 13 February 2024 until the conclusion of school or kindergarten (or 3pm if a non-school day) Wednesday unless otherwise agreed by the parties in writing;
(c) As and from when the child commences Primary School in Term 3 2024:
(i) For the second week of each short school holiday period from 3pm on the middle Sunday until 3pm on the last Sunday unless agreed otherwise in writing.
(ii) For one half of the Christmas school holidays being in weeks 1, 3, and 5 holidays commencing even numbered years and weeks 2, 4, and 6 in holidays commencing odd numbered years and with handover at 3pm each Sunday.
(iii) That during school holidays the operation of paragraph 3 *4 (a) and (b) shall be suspended.
(d) At such other times as may be agreed in writing between the parties.
5. That the child spend time with each parent at Christmas as follows:
(a) In 2025 and each odd numbered year thereafter with the Respondent from 12 noon Christmas Eve to 12 noon Christmas Day and with the Applicant from 12 noon Christmas Day to 12noon Boxing Day;
(b) In 2024 and each even numbered year thereafter with the Applicant from 12 noon Christmas Eve to 12 noon Christmas Day and with the Respondent from 12 noon Christmas Day to 12noon Boxing Day.
6. That for special occasions including the child’s birthday, the birthday of each respective parent, and Mother’s Day, the child spend time with the non-resident parent for a period of two hours if a school day or four hours if a non-school day at times as agreed and in default of any agreement from the conclusion of school until 5:30pm on school days and from 10am to 2pm if a non-school day.
7. That all handovers of the child X do occur at the child’s kindergarten or school if the time for handover coincides with the conclusion of kindergarten or school and the commencement of the parties’ time into whose care X is going, but otherwise in the seated dining space in front of the supermarket at the O Shopping Centre unless otherwise agreed between the parties in writing.
8. That all handovers be effected by either parent or any trusted adult known to the child.
9. That the parties do continue to utilise the co-parenting communication application AppClose to the intent that this shall be the primary method of communication between the parties at all times save and except in the case of an emergency involving the child.
10. That each parent do ensure that they have notifications for the App turned on for the 24 hour period prior to any handover to ensure any urgent information or updates relevant to the impending handover, including but not limited to any health issues, transporting of belongings, or kindergarten/school reminders impacting the child, are known by both parents as may be required and is acknowledged as ‘read’.
11. That in the event of a medical emergency involving the child, the party with the care of the child do telephone to advise the other parent as soon as is practicable.
12. That each party do keep the other updated as to their current telephone numbers and residential address at all times.
13. That the child do continue her kindergarten education at Suburb P Kindergarten.
14. That forthwith the child do be enrolled at the Q School for the duration of her primary schooling years.
15. That each party be at liberty to enrol the child in such extracurricular activities that occur during their time with the child.
16. In the event either parent wishes to enrol the child in an extracurricular activity that will be scheduled during times when the child’s care alternates between the parties, the parties are to consult with the parent regarding this activity BUT NOTING that unless mutually agreed in writing to facilitate the same, neither parent will be obliged to facilitate the child’s attendance at that activity.
17. That each party is entitled to attend school and extra-curricular activities involving the children or either of them, including:
(a) sporting fixtures;
(b) extra-curricular activities that allow for parental attendance;
(c) school functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen.
18. That each parent do authorise all schools at which the child may attend from time to time, to:
(a) provide the other, at the expense of the other, copies of all school reports, school notices and newsletters, school photographs and examples of school work in relation to the child; and
(b) communicate with the other, either by telephone, in writing or by personal attendance, in respect to the child's progress at school, and inform each other of any emergency, remedial or correctional treatment required by child as soon as is practicable.
19. That each parent:
(a) is at liberty to attend with the child at any hospital in the event the child requires medical treatment.
(b) advise the other immediately in the event that thechild suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended;
(c) authorise any medical practitioner, hospital or medical practice upon or at which thechild may attend from time to time, to communicate with the other party in respect to the child’s medical condition and/or requirements.
20. That the child be at liberty to travel between each parent’s home with such belongings and comfort items as the child requests to transport with her and which belong to her.
21. That the parties be restrained and an injunction be granted restraining each of them from:
(a) Attending at the residential address of the other parent save and accept in the event of the child being involved in a medical emergency at that address or unless the parties agree to the same in writing;
(b) Travelling with the child outside of the State of South Australia without the express written consent of the other party and such consent is not to be unreasonably withheld;
(c) Telephoning or sending SMS messages to the other of them save and except in the case of a medical emergency; and
(d) Providing the child with dietary or health supplements of any kind unless expressly consented to by the other parent and/or the same are recommended as necessary by a medical health practitioner BUT NOTING the parties do currently agree and will continue to provide the child with a multivitamin to support her vegan diet.
22. That the parties are restrained and an injunction is granted restraining each of them from:
(a) Physically disciplining or abusing the child; and
(b) Denigrating the other of them to or in the presence or hearing of the child and on social media or allowing any other person to do so;
23. That in the event either party do wish to travel with the child either interstate or overseas, the same to occur on the following basis:
(a) The travelling parent do provide notice and details of the travel plans:
(i) in the case of interstate travel at least four weeks before any intended travel dates; and
(ii) in the case of overseas travel at least four months before any intended travel dates; and
(iii) inclusive of evidence of return flight details, telephone and contact details for each place of accommodation.
(b) In the event the travel plans interfere with the time the child would usually be in the care of the non-travelling parent, and unless agreed otherwise in writing, that parent is to be provided make-up time by way of one night being added to each usually fortnightly weekend that parent has with the child until all missed nights are made up; and
(c) The Applicant is to hold the passport of the child at all times the child is in Australia; and
(d) The parents will be equally responsible for payment of the child’s passports from time to time and both parents are to sign all such necessary documentation and the application within seven (7) days of the same being provided to her.
24. The Respondent is to pay the sum of ONE THOUSAND NINE HUNDRED AND SIXTY-FOUR DOLLARS ($1,964.00) into the trust account of the Applicant’s solicitor for costs associated with the dismissed application filed 7 February 2024.
25. The order for the appointment of the Independent Children’s Lawyer is hereby discharged.
*Pursuant to paragraph 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 this order is amended on 12 February 2024.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
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