Borrell & Lamont (No 2)
[2025] FedCFamC2F 635
•15 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Borrell & Lamont (No 2) [2025] FedCFamC2F 635
File number(s): DGC 2562 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 April 2025 Catchwords: FAMILY LAW – Parenting – by consent trial adjourned part heard – parents to undertake therapy – parents to undergo psychiatric examination and report – Family Report to be updated – substantial agreeance as to interim orders by dispute as to aspects of agreed orders – weight placed on inferred apparent parental authority – costs as to therapy of 80% father and 20% mother. Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 14 – 15 April 2025 Place: Melbourne Counsel for the Applicant: Mr Kuan Solicitor for the Applicant: Bramham Lawyers Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: Anita Di Santo Legal Practice Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates ORDERS
DGC 2562 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BORRELL
Applicant
AND: MR LAMONT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 APRIL 2025
THE COURT ORDERS BY CONSENT (SAVE WHERE INDICATED) THAT:
UNTIL FURTHER ORDER:
1.All previous parenting Orders with respect to live with and spend time arrangements for the child X, born in 2012, (X) be discharged.
2.X live with the mother.
3.X spend time and communicate with the father, on a fortnightly basis, as follows:
(a)in week one (1) from the conclusion of school on Thursday (or 3pm in the event of a non-school day) until the commencement of school on Monday (or 10am in the event of a non-school day), commencing Thursday, 1 May 2025; and
(b)in week two (2) from the conclusion of school (or 3pm in the event of a non-school day) on Thursday until the commencement of school on Friday (or 10am in the event of a non-school day), commencing Thursday, 8 May 2025.
(c)unless otherwise agreed by the parents in writing
4.The mother, her servants and agents, be and are hereby restrained from taking the child into her care or permitting the child from any other arrangement other than in accordance with these orders, and for the avoidance of doubt:
(a)the mother, her servants and agents, be restrained from attending at the child’s school, where changeover occurs at the child’s school;
(b)the mother, her servants and agents, be restrained from permitting the child to be in the care of any parent other than in accordance with these orders
(c)in the event X runs away from the father, while in the father’s care, runs away from the care of the father to the mother (or to a location of which the mother is otherwise aware):
(i)the mother forthwith contact the father to inform him that X has arrived in her care or at the relevant location; and
(ii)the mother forthwith return X to the father at the paternal grandparents home.
BY THE COURT:
5.Notwithstanding order 4 herein in the event X refuses to enter the father’s vehicle or the father’s agent’s vehicle for the purpose of returning from school to the father or attending school from the father’s home then the mother will at the father’s written request transport the child from school to the fathers home or from the father’s home to the child’s school as the case may be.
BY CONSENT:
6.In the event changeover pursuant to Order 3 above does not take place at X’s school due to such day being a non-school day then, save as may be agreed between the parents in writing, changeover shall be effected as follows:
(a)the mother or her agent shall deliver X to the paternal grandparents home at the commencement of X’s time in her father’s care; and
(b)the father or his agent shall deliver X to the mother’s home at the conclusion of time when X is in his care.
7.For the avoidance of doubt either the mother or the father or an agent of either of them may attend changeovers provided such agent is known to X.
BY THE COURT:
8.Each of the parents have the parental responsibility of day to day care and decision making of X when X is in the Mother’s or Father’s care.
BY CONSENT:
Family Therapy
9.Each of the parents do all acts and things necessary to enable X to attend for the purpose of reportable counselling and therapy at the B Clinic for trauma recovery counselling with Ms C (or her nominee), and for such purpose:
(a)the father provide copies of the following documents to the B Clinic and copy the mother into such communications as follows:
(i)copy of these Orders;
(ii)copy of the Family Report by Ms E, dated 23 March 2020;
(iii)copy of the Child Impact Report by Ms D, dated 20 March 2023;
(iv)copy of the Family Report by Ms F, dated 18 November 2024; and
(v)copy of the therapy reports by Ms G, dated 8 April 2024 and 21 November 2024
(b)each of the parents comply with all lawful requests and directions by Ms C (or her nominee), including requests for attendance and therapy;
(c)the costs of therapy and counselling sessions by B Clinic be paid in the split of 80% by the Father and 20% by the Mother.
(d)each of the parents hereby direct and authorise B Clinic and/or Ms C (or her nominee) to discuss and provide to the ICL progress details and updates with respect to the counselling and therapy and/or as to X’s relationship with each of her parents.
10.That a copy of these orders be provided to any school attended by X.
11.That the parties communicate by Appclose or in cases of emergency by text or phone and all communications must be cordial and child focussed.
12.That in addition to changeovers, each of the parties is at liberty to attend any school attended by X for the purpose of parent teacher interviews, school concerts, sports days, or any other event a parent may attend.
13.That each of the parties may contact any of X’s treaters for the purpose of discussing any medical issue (if any) from time to time.
BY THE COURT:
14.The parties are to not retain or publish any photographs of X or communications about X on social media including “Facebook” and “Instagram”. The parents be at liberty to send photos of X via text message to friends and family.
BY CONSENT:
Injunctions or Restraints
15.In addition to the provisions set out at Order 4 above, each of the parents, their servants and agents be and are hereby restrained from denigrating, abusing, insulting or belittling the other parent or his/her extended family to or in the presence and/or hearing of X.
16.That neither party will disseminate or publish any family court documents to any other party and neither will discuss the proceedings with X or in her presence and/or hearing save to explain the current orders that have been made in respect of spend time arrangements.
17.Pursuant to Sections 68 P, 68 Q and 68 of the Family Law Act 1975 (Cth) to the extent that these orders are inconsistent with any State Court Orders, including Magistrate Court Intervention orders the Orders of this Commonwealth Court take precedence and override those state orders.
Family Report
18.Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the parties and X born in 2012 (“X”) attend upon a Court Child Expert (practicing under their appointment as a Family Consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 7 November 2025.
19.The family report address:
(a)the impact upon the child and upon her relationship with the mother if the Court made orders as sought by the father;
(b)the impact upon the child and upon her relationship with the father if the Court made orders as sought by the mother;
(c)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
20.Not later than 4.00 pm on 23 April 2025 the parties must provide their contact telephone numbers and email addresses to …@....
21.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
22.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
23.The Family Consultant shall be at liberty to inspect any material filed by the parties.
24.Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
Further Orders
25.The matter be listed for mention before Judge O’Shannessy on 15 September 2025 at 10.00am in the Melbourne Registry.
26.The matter be listed for part-heard final hearing before Judge O’Shannessy on 15 December 2025 at 10.00am (for an estimated further 4 days) in the Melbourne Registry.
27.The Mother and Father are to file and serve any updated material which they seek to rely upon at the Final Hearing on or before 4.00pm on 28 November 2025
AND THE COURT NOTES THAT:
A.The court intends as far as practical that the interviews with the Family Report writer will occur after the mention on 15 September 2025 and the issue of whether X be further interviewed will be raised at the mention.
B.The form of these orders are consented to by the parents save for the following orders that required the Courts determination as to those points italicised:
(a) Order 3(a) – 1 May instead of 24 April;
(b) Order 3(b) – 8 May instead of 1 May;
(c) Order 4(c)(ii) – Mother to return;
(d) All of Order 5 – Mother to deliver;
(e) Order 8 – No restrictions on day to day decisions;
(f) Order 9(c) – Cost of family therapy ; and
(g) Order 14 – No social media posting, text messages are okay.
C.For the avoidance of doubt, there are no arrangements for special occasions recited in the spend time orders set out in Order 3 herein.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
The matter of Borrell & Lamont comes before me for a contested final hearing. On day two of the trial, by the hard work of the parties and their lawyers throughout today (the second day of the trial) when the matter was stood down, the parties have reached substantial agreement about the way forward.
Substantial agreement of orders
The major framework of the way forward is that these are orders until further order, or interim orders, and that the matter is adjourned part-heard for final hearing, if required, before me in December 2025, that is later this year. The framework is that, over school time and school holidays, the child X (‘X’) will live with her mother and spend time with her father on what can be called a 5-9 each fortnight basis, if you only count the nights, or a 7-11 basis each fortnight, if you count time with a parent on any day.
The scheme is that X will spend some time in the care of her father or the paternal family in the event that he is rostered on with shift work to work, over six days in each fortnight, that is the Thursday after school through the Monday before school (‘the long Thursday’), and then on a Thursday night in the other week (‘the single Thursday night’). The parties then agree that they should be enrolled in family therapy, and that the parties should both be compelled to do that.
Disagreement of orders
The parents disagree about certain issues. They include:
(1)The issue of what if X runs away, as it is the Mother’s evidence that X has disclosed to her that she will run away, and what should happen in that circumstance. The live issue is what is to occur if this happens and if the Father was to collect the child in this circumstance. What if X won't co-operate with the father, either getting in the car or the taxi or his family's motor vehicle or whatever.
(2)The family therapy which will be of substantial expense, the mother seeks the father pay all of it, the father seeks that the costs be divided by each of them being solely responsible for the costs of the sessions that he or she attends with the child.
(3)There is also then a dispute about whether or not any photos or communications about X can be put on Facebook or Instagram, even if the "Settings" are changed so that it only permits family and friends access.
The parties agree that I will, and should be, circumspect about factual findings.
One matter appears to me to be common ground as discussed with the parties, is that as at today, it appears that the mother has more parental authority over X than the father. The father complains about that, and says that has come about because of behaviour of the mother, and the mother says that the father is responsible himself for those circumstances, which include quite a long period since final orders were made where X didn't see the father at all, and then in more recent times, limited non-overnight time. Hence, I will be most circumspect in my rulings.
Determinations of the Court
Spend time dispute
I am satisfied that the long Thursday regime should commence on 1 May 2025, and the single Thursday should commence on 8 May 2025, as pressed by the mother.
A substantial part of my reasoning is that it is going to be necessary for the mother to exercise her parental authority over X to make these orders work, and by having that additional week period, I am inferring that that will assist her with her greater parental authority to ensure that this starts, and there is substance in Mr Kuan's (counsel for the Mother) point that it would start with a collection from school, where I am satisfied it is more likely that X will go with the father or his family.
What should happen if the child runs away
I am satisfied because the mother at this point in time, rightly or wrongly, and I do not determine which, has greater parental authority, that to make the scheme of these orders work, the order as drafted should be 4C(II), the mother forthwith return X to the father at the paternal grandparents' homes. It is hoped that that will never happen.
Similar reasons, that is in the event that there is some sort of standoff or catastrophe at school where the father goes to collect X from school, particularly in the early days of getting these orders moving, that in the event that there is such a trouble, that the mother should otherwise not be in attendance but would promptly then ensure that she collects X and delivers her to the father's home. And that is very much related to my view, tentative, interim view, of the authority that the mother has in regard to X.
Expense of therapy
In regard to the expense of the therapy, there is substance in the independent children's lawyer's point that both parents should be invested in making this work.
The mother's income is apparently, from what I infer and am told, is child support and social security. As a result of the child not seeing the father, the mother applied for and obtained an increase in the child support. She applied in 2022 and received the increase in 2023. As a result of these orders, that the mother consents to, there will be a reduction in the child support as currently payable. So, as of right now, the mother is going to face a reduction in the income into her household.
However, I am satisfied that both parents should contribute to the expense of that but that expense should be in the proportions of the father should pay four-fifths or 80 per cent and the mother should pay one-fifth or 20 per cent. That is, in purport, the father will pay four times as much as the mother for that expensive therapy.
Social media
The father says, "Look, there's no harm and it's ubiquitous and everybody does it and it's to the great benefit of mankind," and certainly Mr Zuckerberg would agree with that: to the effect “that families are able to put communications to friends and families in an instantaneous manner that Facebook and Instagram ingeniously facilitates”.
I am satisfied that the concept of Facebook publication has caused trouble in the past and there is currently a dispute about whether or not the mother has abided by her own medicine that she seeks to impose upon the father, and if so, for how long.
However, I am not satisfied that it is in X's interests that she be exposed to, or even potentially exposed, the anxiety of one or either parent that the other is doing something on Facebook about X.
Notation sought to be an order
The remaining dispute is the issue whether a notation in the orders sought that was handed up to the Court should be made as an order, or be kept as a notation. It was requested to be noted that neither of the parents are to interfere in the day-to-day parenting of the other, which is the law and should not need a notation.
However, there are allegations that one of the parents has unreasonably attempted to place restrictions upon the other. It has been a controversial issue bubbling over for two years. It would be better for X if either or both of the parents could let go of the arm wrestles of the past. They have not done so yet but these orders are a significant move.
I am satisfied that, to ensure clarity and in the circumstances of it being common ground that there has been a recent complaint to police about one of the parents breaching an intervention order, there should be an order, not a notation.
I don't propose it's in X's interest to run off a long list of things that each of the parents should not do. Having read the material, I am satisfied I have got two highly intelligent, articulate parents who will be able to work out, if they are able to put aside their own personal feelings to the other, what sensible arrangements would be in X's interests.
Special occasions not to include parents birthdays
The consequence for this family at this time, unless it could be agreed, is that there are not special arrangements for parents' birthdays. This child is going to be coming and going between households and part and parcel of the deferral of the arrangement to 1 May 2025 and 8 May 2025 is that, unless the parents agreed, that is the limitation of the obligations I am going to impose on each of them.
I am not satisfied that there should be special arrangements for the father's birthday or the mother's birthday in the circumstances of the difficulties that there has been for the parents and X in the past of X moving from household to household.
I intend to mark in the order that the matters were consented to, save for the following matters that required a ruling. So the orders will be headed ‘By Consent’, save where indicated in the minute.
Those are my reasons.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 May 2025
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