FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bentley & Deleo [2025] FedCFamC2F 10
File number(s): BRC 12227 of 2019 Judgment of: JUDGE BERTONE Date of judgment: 20 January 2025 Catchwords: FAMILY LAW –Parenting - Where the child, now 5, has lived with the Mother all her life and spent only sporadic time with the Father largely on a supervised basis - Where multiple orders have been made for child’s supervised time with Father to move to unsupervised time – Where the Mother initially sought an order for the child to spend no time with the Father and have no contact with him whatsoever – Where the Mother changed her position mid-way through the trial to child spend increasing time with Father – Where the Father’s case now seeks a change in residence to ensure the child has a relationship with both parents – Where the Independent Children’s Lawyer supports child moving to live with Father - Where the Mother is unable or unwilling to support the child’s relationship with her Father – Where the evidence supports orders for the child to immediately move to the Father’s care Legislation: Evidence Act 1995 (Cth), s 63
Family Law Act 1975 (Cth), Part VII, ss 4, 60B, 60CA, 60CC, 60CG, 61D, 65LA, 68P, 69ZT, 91B, 114Q
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Chapter 7
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Briginshaw v Briginshaw [1938] HCA 34;
Browne v Dunn (1893) 6 R 67;
Isles & Nelissen [2022] FedCFamC1A 97
Whisprun Pty Ltd & Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 311 Date of last submission/s: 11 November 2024 Date of hearing: 19 September 2024, 20 September 2024 Place: Brisbane Counsel for the Applicant: Ms R Barron Solicitor for the Applicant: McCormick Family Law Counsel for the Respondent: Mr A Arnold Solicitor for the Respondent: AGP Lawyers Solicitor for the Independent Children's Lawyer: Ms R Mannering - Northside Family Law Centre ORDERS
BRC 12227 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BENTLEY
Applicant
AND: MS DELEO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS:
1.All previous orders are discharged.
2.The Father have sole decision making power for the major long term decisions for X born in 2019 and in the exercise of this parental responsibility, the Father will:
(a)Communicate by parenting app or email with the Mother about a decision to be made and the options, if any;
(b)Consider any feedback provided by the Mother via the parenting app or email, should this feedback be given to him within a reasonable time; and
(c)Inform the Mother via the parenting app or email of the decision he has made.
3.The child live with the Father.
4.Commencing Friday 31 January 2025, the child shall spend time with the Mother as agreed, and failing agreement, during the school term, from Friday after…
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CaseChat Overview and Summary
The court considered the child's best interests as the paramount concern. It examined the evidence of the child's relationship with each parent and the impact of the proposed changes on her welfare. The court found that the evidence strongly supported Mr Bentley being the primary caregiver, as it would foster a healthy relationship between the child and both parents. The court also noted that Ms Deleo was unable or unwilling to facilitate the child's relationship with Mr Bentley, which was a significant factor in its decision.
Based on this, the court made several orders to facilitate the child's relationship with both parents. The child was ordered to live with Mr Bentley, with detailed arrangements for her time with Ms Deleo during school terms and holidays. The court also set out specific provisions for special days, communication between the parents, and the engagement of police or child welfare authorities. Additionally, the court imposed certain restrictions on Ms Deleo to protect the child's welfare and outlined communication protocols and changeover procedures. The court also directed the parents to engage a Parenting Coordinator to assist with ongoing parenting arrangements.
Orders
Orders of the court
BRC 12227 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BENTLEY
Applicant
AND:
MS DELEO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS:
1. All previous orders are discharged.
2. The Father have sole decision making power for the major long term decisions for X born in 2019 and in the exercise of this parental responsibility, the Father will:
(a) Communicate by parenting app or email with the Mother about a decision to be made and the options, if any;
(b) Consider any feedback provided by the Mother via the parenting app or email, should this feedback be given to him within a reasonable time; and
(c) Inform the Mother via the parenting app or email of the decision he has made.
3. The child live with the Father.
4. Commencing Friday 31 January 2025, the child shall spend time with the Mother as agreed, and failing agreement, during the school term, from Friday after school or 3:00pm until Monday before school or 9:00am each alternate week, commencing in the first week of each school term.
5. Commencing in 2025 and in each year thereafter during the April, June/July, and September/October school holiday periods the child shall spend time with each parent as follows, unless otherwise agreed in writing:
(a) In odd numbered years, the child shall spend the first half of each school holiday period with the Father and the second half with the Mother; and
(b) In even numbered years, the child shall spend the first half of each school holiday period with the Mother and the second half with the Father.
6. Commencing in 2025, and each year thereafter in the December/January school holiday period, the child spend time with each parent as follows, unless otherwise agreed:
(a) In odd numbered years, the first, third and fifth week with the Father and the second, fourth and sixth week with the Mother; and
(b) In even numbered years, the first, third and fifth week with the Mother and the second, fourth and sixth week with the Father;
(c) The time during the December/January school holiday period is to be suspended to ensure that the child spends time with each parent at Christmas in accordance with these Orders.
SPECIAL DAYS
Child’s birthday
7. Unless otherwise agreed, on the child’s birthday the child will spend time with the parent with whom she does not wake up on that birthday:
(a) If a school day, from after school, until 5:00pm; and
(b) If a non-school day, from 12:00pm until 5:00pm.
Mother’s birthday
8. On the Mother’s birthday, if the child is not in the Mother’s care, then the child will spend time with the Mother as follows, unless otherwise agreed:
(a) If on a school day, from after school, until 5:00pm; and
(b) If on a non-school day, from 9:00am until 5:00pm.
Father’s birthday
9. On the Father’s birthday, if the child is not in the Father’s care, then the child will spend time with the Father as follows, unless otherwise agreed:
(a) If on a school day, from after school, until 5:00pm; and
(b) If on a non-school day, from 9:00am until 5:00pm.
Mother’s Day and Father’s Day
10. Notwithstanding any other order, unless otherwise agreed, the orders for time shall be suspended so as to ensure that the child spends:
(a) Mother’s day with the Mother, from 10:00am until 5:00pm; and
(b) Father’s day with the Father, from 10:00am until 5:00pm.
Christmas
11. Notwithstanding any other order, unless otherwise agreed, the child shall spend time with each parent during the Christmas period as follows:
(a) In odd numbered years, with the Father from 4:00pm on 22 December until 4:00pm on 26 December and with the Mother from 4:00pm 26 December until 4:00pm 30 December; and
(b) In even numbered years, with the Mother from 4:00pm on 22 December until 4:00pm on 26 December and with the Father from 4:00pm on 26 December until 4:00pm on 30 December.
CHILD’S COMMUNICATION WITH THE PARENTS
12. Commencing Tuesday 28 January 2025, the child will communicate with the parent with whom she is not living each Tuesday and Thursday between 6:00pm and 6:30pm, unless otherwise agreed, and in relation to such communication:
(a) The parent who is due to communicate with the child shall initiate and end the call;
(b) The parents shall ensure that the child is available to receive the telephone/video call;
(c) The parents shall ensure that the child has privacy; and
(d) The parents shall ensure that the telephone/video call is not recorded.
13. The child is at liberty to communicate with each of her parents at any reasonable time and the parent with whom the child is with at that time shall facilitate the child communicating with the other parent via telephone or electronic means such as Skype or Facetime.
CHANGEOVER
14. Unless otherwise agreed, all changeovers occurring on a school day are to take place at the child’s school.
15. Unless otherwise agreed, all changeovers occurring on a non-school day shall occur at Suburb C McDonalds, B Street, Suburb C, with changeover to be effected inside the McDonalds restaurant.
COMMUNICATION BETWEEN THE PARENTS
16. Except in an emergency, the parents shall communicate all issues in relation to the care, welfare and development of the child by way of the ‘Talking Parents’ app.
17. Each parent upon receiving a message via the ‘Talking Parents’ app from the other parent is to acknowledge receipt of the message within 48 hours of the message being sent.
ENGAGEMENT WITH POLICE OR STATE CHILD WELFARE AUTHORITIES
18. Each parent is to immediately notify the other parent in the event of the following:
(a) That parent, the child, or any person living in that parent’s household, has any engagement with any police service or any State child welfare agency;
(b) If that parent, or the child is a victim of family violence, or is exposed to family violence;
(c) If that parent is named as an aggrieved or the child is named as an aggrieved in any domestic or family violence or protection order; and
(d) If that parent is named as a respondent, or that parent’s partner is named as a respondent in any domestic or family violence or protection order.
19. In the event of a situation arising as set out in Order 18 hereof, then that parent shall immediately provide to the other parent details of the interaction with the Police service or State child welfare agency, together with a copy of any of the following documents:
(a) Any Protection order application that parent has made;
(b) Any Protection order containing the name of that parent or the child;
(c) Any witness statement made by that parent; and
(d) Any other document provided to that parent by any Police service or State child welfare agency about that parent, child, or that parent’s partner.
RESTRAINTS
20. The Mother is restrained by injunction from:
(a) Attending the child’s school on her first day of Prep; and
(b) Attending the child’s school on a day that X is not scheduled to be in her care, unless there is a special event at the school at which parents are usually invited.
21. The Mother is restrained by injunction from consuming any cannabis or medicinal marijuana 8 hours’ prior to or at any time whilst the child is in her care.
22. The Mother is restrained by injunction from allowing the child:
(a) To be transported in a vehicle driven by any person who has consumed any cannabis or medicinal marijuana; and
(b) Being in the presence of a person who is taking cannabis or medicinal marijuana.
23. Each parent is restrained by injunction from:
(a) Physically disciplining the child;
(b) Allowing any other person to physically discipline the child; and
(c) Consuming alcohol above the 0.05% blood alcohol limit whilst the child is in that parent’s care.
AUTHORITIES
24. This Order is sufficient authority for the child’s school to give each parent information about the child’s progress and other school related activities and supply each of them with a copy of school reports, photographs and certificates obtained by the child at the cost of the requesting parent.
25. Each parent is at liberty to attend any school event parents are usually invited to attend, including but not limited to, parent teacher interviews (but not together), sport carnivals, concerts or similar provided that the parents do not approach each other or communicate with each other at that school event.
26. This Order is sufficient authority for any treating medical practitioner, specialist, allied health practitioner or dentist to release the child’s medical information to each parent and for this purpose the parent shall, as soon as practicable, inform the other parent of the name and contact number of the medical practitioner upon whom the child has attended.
27. Pursuant to s114Q of the Act each parent is at liberty to provide a copy of these Orders to the child’s school and medical practitioners.
SPECIFIC ISSUES
28. In the event the terms of these Orders are inconsistent with the provisions contained in any Protection order or Family Violence Order, then pursuant to section 68P of the Act, these Orders shall prevail.
29. Each parent is to immediately notify the other of any major illness, accident or injury that the child or that parent has experienced, as soon as practicable and urgently in respect of a medical emergency.
30. Each parent shall keep the other informed of all extracurricular activities and events in which the child is involved, whether arranged through the child’s school or independently outside of school.
31. During the time the child is with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) Speak of the other parent respectfully and not denigrate the other parent or the other parent’s relatives, in the presence or hearing of the child; and
(c) Not discuss any adult issues or court proceedings with the child or with any other person in the presence or the hearing of the child.
32. Each parent will keep the other parent informed of their current residential address, mobile telephone number and email address and within 48 hours of any change, notify the other parent of such change.
ORDERS MADE BY CONSENT OF ALL PARTIES
Appointment of Parenting Coordinator
33. Subject to the availability of the service, waitlists and the family being assessed as suitable for the provision of its services, the parents agree to appoint Ms E of D Centre as Parenting Coordinator, or such other Parenting Coordinator as agreed, and for this purpose, each parent shall:
(a) Telephone D Centre within 7 days to arrange an appointment for an intake interview;
(b) Promptly supply all requested information, records, and a copy of this Order to the Parenting Coordinator;
(c) Attend appointments as requested by the Parenting Coordinator;
(d) Comply with the guidelines of the Parenting Coordinator’s process and abide by the Parenting Coordinator’s agreement;
(e) Comply with all reasonable requests and directives of the Parenting Coordinator; and
(f) Unless later agreed between the parents, they shall equally meet the fees of Parenting Coordination and pay all accounts rendered by D Centre for Parenting Coordination Services in a timely manner.
34. The parents are at liberty to provide to the Parenting Coordinator copies of any documents filed in these proceedings, any Court orders, and any relevant expert reports that the Parenting Coordinator reasonably requests, and only such documents as they request pursuant to section 114Q of the Act.
35. The parents authorise and consent to the Parenting Coordinator consulting and /or meeting with, or obtaining relevant information from, any relevant third parties, including the child, her school, and any health care professionals for the child or the parents, and will sign authorities to that effect if requested by the Parenting Coordinator.
36. That unless otherwise agreed, the parents will engage with the Parenting Coordinator for a period of eighteen months.
37. All applications otherwise be dismissed.
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
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Ratio Decidendi
Legal Principle Established
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