FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDREWS & GRANT (No.2) | [2015] FCCA 953 |
| Catchwords: FAMILY LAW – Parenting – Child aged 7 years – Child has lived primarily with Mother since birth – Mother’s persistent disregard for Court Orders – Mother’s inability/unwillingness to support Child’s relationship with Father – Child’s exposure to unremitting conflict over many years – deficiencies in each household – expert recommended significant change required – Child moved to Father’s primary care. |
| Legislation: Family Law Act 1975, ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Dundas & Blake [2013] FamCAFC 133 H v W (1995) FLC 92-598 R and R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR ANDREWS |
| Respondent: | MS GRANT |
| File Number: | SYC 3007 of 2009 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 13, 14, 15, 16 and 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Schonell SC |
| Solicitors for the Applicant: | Mills Oakley Lawyers |
| Counsel for the Respondent: | Mr A. Givney |
| Solicitors for the Respondent: | Tilley Family Law & Mediation |
| Counsel for the Independent Children’s Lawyer: | Ms L. Boyle |
| Solicitors for the Independent Children’s Lawyer: | S Davitt Family Lawyers |
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
The Child X born (omitted) 2007 live with the Father.
The Father have sole parental responsibility for decisions concerning X’s long term care and welfare.
X spend time with the Mother as follows:
(a)During school terms, each alternate weekend from after school on Friday until before school on Monday (or Tuesday if Monday a public holiday) commencing on Friday 24th April 2015.
(b)For the second half of the school holidays at the end of Terms 2 and 3 in 2015 and in Terms 1, 2 and 3 in all odd numbered years thereafter, from 5.00p.m on the day which falls on the middle day of the holidays until 5.00p.m on the afternoon before the school term recommences, or 5 p.m. before X is required to recommence school if the first day of the school term is a pupil free day.
(c)For the first half of the school holidays at the end of terms 1, 2 and 3 in 2016 and all even numbered years thereafter, from after school on the last day of the school term until 5.00p.m on the day which falls on the middle day of the holidays.
(d)For the second half of the Christmas school holidays in 2015/16 and in alternate years thereafter, and for the first half of the Christmas school holidays in 2016/17 and alternate years thereafter.
(e)From 4.00p.m on Christmas Day until 6.00p.m on Boxing Day in 2015 and in all odd numbered years thereafter noting that X will spend time with the Mother in the first half of the 2016/17 school holidays and will therefore spend Christmas Day until 4 p.m. with the Mother in all even numbered years.
(f)On the Mother’s Day weekend from Friday after school until Monday before school if X…
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- ANDREWS & GRANT (No.2) [2015] FCCA 953
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- [2015] FCCA 953
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CaseChat Overview and Summary
The court's reasoning focused on establishing orders that it considered to be in X's best interests. This involved discharging all previous parenting orders and making new arrangements for X's residence and time with each parent. The court detailed specific schedules for X's time with the Mother, including alternate weekends, school holidays, public holidays, birthdays, and other significant dates. It also outlined specific provisions for X's time with the Father, particularly concerning Christmas and Easter periods, and Father's Day.
Furthermore, the court imposed significant restrictions and obligations on both parents to safeguard X's welfare. These included provisions regarding X's passport, the father's ability to obtain and hold it, and strict limitations on the mother removing X from Australia, including the involvement of law enforcement and immigration authorities. The court also made orders concerning X's therapy, the involvement of a Ms M in X's care, attendance at school events, communication between the parties, and prohibitions against denigrating each other or involving X in proceedings. The court also directed that X be informed of these orders by a psychotherapist.
Orders
Orders of the court
1.
All previous parenting Orders be discharged.
2.
The Child X born (omitted) 2007 live with the Father.
3.
The Father have sole parental responsibility for decisions concerning X’s long term care and welfare.
4.
X spend time with the Mother as follows:
(a) During school terms, each alternate weekend from after school on Friday until before school on Monday (or Tuesday if Monday a public holiday) commencing on Friday 24th April 2015.
(b) For the second half of the school holidays at the end of Terms 2 and 3 in 2015 and in Terms 1, 2 and 3 in all odd numbered years thereafter, from 5.00p.m on the day which falls on the middle day of the holidays until 5.00p.m on the afternoon before the school term recommences, or 5 p.m. before X is required to recommence school if the first day of the school term is a pupil free day.
(c) For the first half of the school holidays at the end of terms 1, 2 and 3 in 2016 and all even numbered years thereafter, from after school on the last day of the school term until 5.00p.m on the day which falls on the middle day of the holidays.
(d) For the second half of the Christmas school holidays in 2015/16 and in alternate years thereafter, and for the first half of the Christmas school holidays in 2016/17 and alternate years thereafter.
(e) From 4.00p.m on Christmas Day until 6.00p.m on Boxing Day in 2015 and in all odd numbered years thereafter noting that X will spend time with the Mother in the first half of the 2016/17 school holidays and will therefore spend Christmas Day until 4 p.m. with the Mother in all even numbered years.
(f) On the Mother’s Day weekend from Friday after school until Monday before school if X is not already spending time with the Mother on that weekend.
(g) On X’s birthday, from after school or 3.00p.m if a non-school day until before school the following morning or 9.00a.m. if a non-school day noting that if X is already with the Mother on her birthday in accordance with these Orders, this order will not apply, and X will not spend time with the Father on that birthday.
(h) On the Mother’s birthday, from after school or 3.00p.m if a non-school day until before school the following morning or 9.00a.m. if a non-school day noting that if X is already with the Mother on her Mother’s birthday in accordance with these Orders, this order will not apply.
(i) On the Maternal Grandmother’s birthday, from after school or 3.00p.m. if a non-school day until before school the following morning or 9.00a.m. if a non-school day noting that if X is already with the Mother on her birthday in accordance with these Orders, this order will not apply.
(j) At other times as agreed in writing.
5.
The school holiday periods will be those that apply at (omitted) school, or at the school X is attending at the relevant time.
6.
For the purposes of calculating the changeover day in school holidays, the last day of the school term will be the first day of the holiday period (Day 1) and the last full day before the new term recommences, or the day after if the day before the term commences is a pupil free day will be the last day (last Day). The midpoint of the school holidays will be 5.00p.m on the middle day. If there are an even number of days in the school holiday period, the middle day will be the first of the middle days.
7.
When the Easter period does not fall in the school holidays from the year 2017, X spend that Easter period with the parent with whom she did not spend the Easter period in the previous year.
8.
Notwithstanding any other Order, X spend time with the Father as follows:
(a) From 4.00p.m Christmas Day until 6.00p.m. Boxing Day in 2016 and in all even numbered years thereafter noting that X will be living with the Father in the first half of Christmas school holidays in 2015 and in all odd numbered years thereafter, so X will spend Christmas Day until 4.00p.m. with the Father in all odd numbered years.
(b) From after school on the Wednesday immediately before the Easter weekend in 2016 until before school on the first school day after the Easter weekend.
(c) On the Father’s Day weekend from after school Friday until before school Monday but if the Father’s Day weekend is the Mother’s usual weekend, X spend time with the Mother on the following weekend in substitution for the Father’s Day weekend noting this will mean X has two consecutive weekends with the Mother.
9.
Except as otherwise provided, alternate weekend time be suspended during all school holiday periods and recommence on the second weekend of every new school term in 2015 and all odd numbered years and on the first weekend of every new school term in 2016 and all even numbered years.
10.
When not at school, changeovers occur at the (omitted) Park kiosk, when, until X attains 10 years, each party will arrange an agent to attend changeovers on that party’s behalf, such agent for the Father not to be Ms M, and neither party shall attend changeover at (omitted) Park before X attains 10 years.
11.
The Mother forward X’s current passport to the Father’s solicitors within 14 days.
12.
The Father be permitted to obtain and renew a passport for X without the consent or signature of the Mother and, unless the Father has agreed to X travelling overseas with the Mother (when he will provide her passport to the Mother for the period of travel) the Father will hold X’s passport.
13.
The Father is permitted to remove X from the Commonwealth of Australia for the purposes of holidays up to three weeks during times when she is living with him on condition that the Father provides the Mother with not less than 6 weeks written notice of his intention to travel with such notice to include details of destination and period of travel.
14.
The Father provide return ticketing details to the Mother, a full itinerary and contact details for X for the duration of the holiday no later than 14 days prior to travel.
15.
Except with the written consent of the Father, the Mother, by herself, her servant or her agent is hereby restrained from removing or attempting to remove the Child X born on (omitted) 2007 (female) from the Commonwealth of Australia until she attains the age of 16 years.
16.
The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Mother from removing or attempting to remove the said Child from the Commonwealth of Australia.
17.
Until the Child attains the age of 16 years, the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
18.
In the event X travels overseas with the Mother in accordance with these Orders, the Mother return X’s passport to the Father within 7 days of her return.
19.
The Father facilitate X’s attendance at therapy with Dr L, psychotherapist, or as otherwise recommended by Dr L or by X’s school, and each party attend upon Dr L (or other therapist recommended by Dr L) as requested by Dr L or the recommended therapist.
20.
In the event the Mother is consulting a therapist, the Mother forthwith notify the Independent Children’s Lawyer of the name and contact details of her therapist, and the Independent Children’s Lawyer provide a copy of these Orders and Reasons for Judgment to the Mother’s therapist.
21.
The Father ensure that Ms M does not consume alcohol when X is in his care.
22.
Except as otherwise provided, each party be restrained from attending X’s school during periods X is in the care of the other party, and the Father use his best endeavours to ensure Ms M does not attend the school when X is in the care of the Mother.
23.
For a period of 18 months, each party be restrained from attending any school event to which parents are invited or extracurricular activity (inside or outside school) in which X is involved, unless X is in that party’s care in accordance with these Orders.
24.
When the period of 18 months referred to in Order 21 has expired, the parties may both attend events at the school to which parents are invited, or extracurricular activities, when the parties shall maintain a respectful distance from each other and each other’s partner, and shall ensure X observes that they behave in a respectful manner towards each other.
25.
The Mother is authorised by these Orders to obtain duplicate copies of X’s school reports and school photograph order forms.
26.
Each party be restrained from attending the residence of the other unless invited to do so in writing.
27.
The parties advise each other urgently in the event X is involved in any accident which requires attendance at a hospital with such advice to include details of the accident and/or injury, details of the treating hospital and the treating medical practitioner.
28.
Each party advise the other if any medication has been prescribed for X.
29.
Each party advise the other of any specialist appointments regarding X and the outcome of any consultations.
30.
Each party keep the other advised of his/her residential address and contact telephone numbers.
31.
The parties communicate issues of an urgent nature by mobile telephone and otherwise communicate by email.
32.
Each party be restrained from telephoning X during the time when she is living with/spending time with the other party on condition that the party caring for X ensures X telephones and speaks to the other party on at least one occasion each week.
33.
Each party be restrained from:
(a) Denigrating the other or the other’s partner or family members in the presence or hearing of X;
(b) Coercing X to negotiate changes to these parenting Orders on behalf of either party;
(c) Involving X in the parenting arrangements;
(d) Discussing the family law proceedings with X.
(e) Using X as a messenger between them.
34.
The Father provide a sealed copy of these Orders to the Senior and Junior (omitted) School Prinicipals,
35.
The Independent Children’s Lawyer provide a sealed copy of these Orders and Reasons for Judgment to Dr L by the close of business today.
36.
The Father forthwith organise a consultation between X and Dr L as soon as possible, for X to have the orders explained to her.
37.
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.
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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