Bassitt & Mense (No 2)
[2024] FedCFamC1F 87
•13 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Bassitt & Mense (No 2) [2024] FedCFamC1F 87
File number(s): BRC 11867 of 2020 Judgment of: CAREW J Date of judgment: 13 February 2024 Catchwords: FAMILY LAW – CHILDREN – Where the parties provided a minute of order on the first day of trial – Where the proposed order was supported by the independent children’s lawyer – Where the proposed order is in the best interests of the children – Order made by consent Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 12 Date of hearing: 13 February 2024 Place: Brisbane Counsel for the applicant: Mr Hanlon Solicitor for the applicant: Brisbane Line Lawyers Counsel for the respondent: Ms Hallewell Solicitor for the respondent: Principle Legal Counsel for the independent children’s lawyer: Mr Kalimnios Solicitor for the independent children’s lawyer: Queensland Legal Practice ORDER
BRC 11867 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BASSITT
Applicant
AND: MR MENSE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
13 FEBRUARY 2024
THE COURT ORDERS BY CONSENT:
1.That all previous Orders, Undertakings and Parenting Plans be discharged.
2.That the following parenting orders shall apply for the children, X born 2017 and Y born 2019 (“the children”) unless the Mother and Father agree in writing to alter all or some of them either temporarily or permanently.
Parental Responsibility
3.The Mother shall have sole parental responsibility for the children’s healthcare, including their medical and therapeutic needs, provided that:
(a)Before any major long-term health decision is made by the Mother pursuant to paragraph 3, she is to provide to the Father in writing a short note (e.g. via a parenting app) of notification and any basic information considered by the Mother as directly relevant to the proposed decision;
(b)The Father may comment within seven days after receiving the notification;
(c)If there is no response from the Father within that specific time the Mother may make such decision as she thinks is in the best interests of the children without further notice; and
(d)If the Father comments in relation to the proposed decision, the Mother should reasonably take it into account before making the ultimate decision.
4.That otherwise the parents shall have equal shared parental responsibility for all other major long-term decisions for the children.
5.The parents are not, however, required to consult with each other about the daily care of the children.
Exchange of Information
6.That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 7 days prior to relocating their residence;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children, and this Order authorise those practitioners to provide the other parent with information that they are able to provide about the children.
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and this Order authorise any treating medical practitioner to release the children’s medical information to the other parent.
7.That this Order authorise the schools or day care centres or extra-curricular activity providers attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
8.That during the time the children are with either parent, that parent shall:
(a)Positively promote to the children the children’s relationship with the other parent;
(b)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(c)Speak of the other parent respectfully;
(d)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(e)Not discuss any issues that are in dispute between the parents nor allow any other person to discuss issues in dispute in the presence or hearing of the children.
Living Arrangements for the Children
Term Time
9.That the children shall spend time with the father:
(a)From the date of this Order each alternate weekend from after school or 3:00pm Friday 16 February 2024 until 5:00pm Saturday to continue fortnightly thereafter for 16 weeks (8 visits);
(b)Then, each alternate weekend from after school or 3:00pm on Friday until 5:00pm Sunday until 1 December 2024;
(c)Then on and from 1 December2024 each alternate weekend from after school or 3:00pm Friday until before school or 9:00am the following Monday;
(d)Then on and from 1 December 2025 each alternate weekend from after school or 3:00pm Friday until before school or 9:00am Tuesday.
10.That otherwise, the children shall live with the mother during school term.
School Holidays
11.From 1 January 2025, school term time shall be suspended during the school holiday periods.
12.From 1 January 2025, the children shall spend time with their parents on a week about basis during X’s gazetted school holiday periods:
(a)For the purpose of paragraph 12 herein, the school holiday time shall commence:
(i)For the first, second and third term holidays, when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(ii)For the first, second and third term holidays, when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9:00am on the day the school term recommences;
(iii)School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night;
(iv)For the Christmas Holidays on a week about basis from 3:00pm on the last day of the school year with the first week to be spent with the father in even numbered years and with the mother in odd numbered years.
Special Occasions
13.That notwithstanding any previous paragraphs in this Order, the children shall spend time with their parents on special occasions as follows:
(a)For Christmas Day:
(i)From 3.00pm Christmas Eve until 3:00pm Christmas Day in even numbered years with their Father and in odd numbered years with their Mother; and
(ii)From 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years with their Father and in even numbered years with their Mother;
(b)On the birthday of each child (with the parent they are not living with on the day) (including every child):
(i)If a school day, from after school until 6.00pm;
(ii)If a non-school day, from 1.00pm until 6.00pm;
(iii)With that parent to be responsible to collect and return the children;
(c)With their Father on the Father’s Day weekend and in the event that that is a non contact weekend the father shall forgo the following weekend of contact;
(d)With their Mother on the Mother’s Day weekend and if that is a non-contact weekend, the mother shall forgo the following weekend of contact.
Telephone/Facetime Time
14.The children shall be permitted to communicate with their parents on the telephone at such times as a child reasonably requests, and that parent shall facilitate the call.
15.The parents may telephone/video call the children at 5:00pm for up to 30 minutes but only on Monday unless otherwise agreed and in relation to such communication each parent shall:
(a)Ensure that the children are available to receive the telephone call;
(b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent;
(c)Ensure that the children have privacy during the conversation;
(d)Not stream the call to the television or record the call.
Collection and Delivery
16.That except as otherwise ordered, the changeover point for the transition for the children between the households shall be the children’s school and/or day care centre wherever possible, but if the children are not attending school and/or day care then the changeover shall occur at a supermarket located at Suburb B and for that purpose:
(a)The parents may collect the children in person or by their nominee provided that the nominee is an adult who is known to the child and the other parent;
(b)Each parent shall be punctual in attending the changeover and if there is to be a delay shall phone the other parent.
17.That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.
Other Issues
18.That both parents are at liberty to attend the children’s school/day care and extracurricular activities that parents are ordinarily invited to attend.
19.That the child X shall continue to engage in therapeutic play-based therapy until such time that the therapist determines that it is no longer required and the parents shall follow the recommendations of the therapist.
20.That within seven days of the date of this Order, the mother shall engage with a psychologist for therapeutic intervention so that she can appropriately support the children having a relationship with the father.
21.That in the event that the mother seeks specialist intervention for the child X’s sexualised behaviours then the mother shall provide a copy of the Magellan Report dated 15 November 2022, to the therapist.
22.That within 28 days of the date of this Order, the mother shall provide the father with a panel of three parenting co-ordinators and the father shall, within seven days of receipt, choose the co-ordinator, and the costs of the co-ordinator are to be shared equally between the parties.
23.That when the child X is with either parent, he is not to be left unattended with other children and he is to sleep in his own bed and bedroom.
24.That when the child X is with either parent, that parent shall ensure that he does not shower/bathe with any other children or sleep in the in bed as any other children.
25.That wherever possible, the parents are to follow the same routine in each household and the parents shall provide each other, within seven days of the date of this order, with an outline of the children’s routine.
26.That within seven days of the date of this Order, the parents are to enrol in and pay for a subscription to the Our Family Wizard parenting app, and unless and save for an emergency they are to communicate with each other strictly about the children by the use of that app.
Dispute Resolution
27.That the parents are to review this Order once the child Y has commenced Grade two, by way of a mediation, and for that purpose the mother shall provide the father with a list of three mediators and the father shall choose one, with the costs to be shared equally between the parties.
28.That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney- General; or
(b)participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
IT IS FURTHER ORDERED:
29.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J:
The parties to this parenting dispute are the parents of two young children, X, aged six, and Y, aged four. The parents separated in 2019 and are now divorced.
A ‘final’ parenting order was made by consent in December 2021, but proceedings were recommenced by the mother in October 2022.
The father has spent only supervised time with the children for about two and a half hours a week since about August 2022. Historically, he has spent significant time with particularly X, and the parents seem to have had a pretty good co-parenting relationship for the most part up until about mid-2022.
On what was to be the first day of a four-day trial, the parties negotiated all day and presented a minute of order that they sought the court make by consent. The independent children’s lawyer supports the order.
The children have always lived with their mother and will continue to do so. The father’s time will no longer be supervised and will commence this Friday, from 3.00pm until 5.00pm Saturday, and then gradually increase to alternate weekends, and then to include Monday nights by 1 December 2025. There is also a provision for the children to spend holiday time with the father.
The parents will have equal shared parental responsibility for all major long-term issues, save health, for which the mother will have sole parental responsibility. The mother contends that although she formed the view that the father had inappropriately touched X from what X told her and his subsequent behaviour, she now accepts, having reviewed all the relevant material, including documents produced pursuant to subpoena, that she was likely wrong in her conclusion.
The mother has no doubt considered the investigations have been carried out by both Queensland Police and the Department of Child Safety, Seniors and Disability Services (“Child Safety”) and that neither have concluded that the father poses a risk to the children. The mother will also no doubt be mindful of the concerns expressed by Child Safety about her fixation with gathering evidence to support her theory, which has no doubt unintentionally contributed to X’s anxious presentation.
It must be stressed that the parties had the opportunity to have findings made about the allegations each of them makes against the other but have elected to resolve the matter in what they consider to be in their children’s best interests.
When parties agree to parenting orders, the Court must nevertheless be satisfied that any proposed order is in the best interests of the children. However, the Court is not required to have regard to all matters that may be relevant, as set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth).
Both parents are employed and seem to have a lot to offer their children. The observations made of the father with the children in a supervised setting have been very positive. The children have a close and loving relationship with both of their parents.
In the circumstances, I am content to make the order as set out in the minute signed by the parties and initialled by me. The minute will remain with the court file.
This resolves all matters currently before the Court.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 13 February 2024
0
0
1