FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bruin & Bruin (No 2) [2024] FedCFamC2F 176
File number(s): MLC 1939 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – parenting – whether the parties should exercise equal shared parental responsibility or the father should have sole parental responsibility – risk of the children in the mother’s care – sexual abuse allegations– whether the mother’s time be professionally supervised then progress to unsupervised time – the mother’s drug use – mental health of the mother– whether or not conditional orders can be made that would allow for the mother’s time to progress to unsupervised Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 64(g)(2), 64B(2)(g), 65D Cases cited: Betros & Betros [2017] FamCAFC 90
Isles & Nelissen [2022] FedCFam1A 97
Lainhart & Ellinson [2023] FedCFamC1A 200
Nuan & Lei [2023] FedCFamC1A 211
Oberlin & Infeld [2021] FamCAFC 66
Oram & Lambert and Ors [2019] FamCAFC 4
Division: Division 2 Family Law Number of paragraphs: 218 Date of hearing: 29, 30 November 2023 and 1 December 2023 Place: Melbourne Counsel for the Applicant: Ms Mariole Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 1939 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRUIN
Applicant
AND: MS BRUIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The Father have sole parental responsibility for the children, X born in 2011 and Y born in 2012 (“the children”).
3.The Father, in exercising sole parental responsibility, except in the case of urgency, advise the mother in writing of his intention to make a decision and why, giving the mother an opportunity to express her view and shall inform the mother of the decision.
4.The children live with the Father.
5.The children spend time with the Mother as follows:
(a)Commencing in February 2024, during gazetted school term periods, as follows:
(i)supervised by N Contact Service (or such other supervising agency or professional as may be agreed between the parents in writing, including via email or SMS text message) for not more than 3 hours on the first Saturday of each month at times as may be agreed between the parties in writing and in default from 9am until 12pm on such days; and
(ii)supervised by N Contact Service (or such other supervising agency or professional as may be agreed between the parents in writing, including via email or sms text message) for not less than 3 hours and not more than 6 hours on the Sunday following the first Saturday of each month at times to be agreed and in default from 10am until 4pm;
(b)At such further or other…
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CaseChat Overview and Summary
The court concluded that the father should have sole parental responsibility for the children, with the children living with him. The mother was granted supervised visitation with the children, initially under strict conditions, but with the potential to progress to unsupervised time if certain conditions were met. The court emphasised the importance of the father keeping the mother informed of decisions affecting the children and ensuring she had access to relevant medical information. The court also imposed restrictions on the mother’s contact with the children’s school and medical practitioners and required her to return any passport applications to the father. The Independent Children’s Lawyer was tasked with explaining the court’s orders to the children.
The court's orders included detailed provisions for the children's care, communication between the parents, and restrictions on the mother's actions to protect the children from harm. The court also provided for the possibility of the mother’s visitation progressing to unsupervised time, contingent upon her meeting specified conditions. The final orders discharged all previous parenting orders and established new arrangements for the children's care, communication between the parents, and restrictions on the mother's actions.
Orders
Orders of the court
MLC 1939 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BRUIN
Applicant
AND:
MS BRUIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1. All previous parenting Orders be discharged.
2. The Father have sole parental responsibility for the children, X born in 2011 and Y born in 2012 (“the children”).
3. The Father, in exercising sole parental responsibility, except in the case of urgency, advise the mother in writing of his intention to make a decision and why, giving the mother an opportunity to express her view and shall inform the mother of the decision.
4. The children live with the Father.
5. The children spend time with the Mother as follows:
(a) Commencing in February 2024, during gazetted school term periods, as follows:
(i) supervised by N Contact Service (or such other supervising agency or professional as may be agreed between the parents in writing, including via email or SMS text message) for not more than 3 hours on the first Saturday of each month at times as may be agreed between the parties in writing and in default from 9am until 12pm on such days; and
(ii) supervised by N Contact Service (or such other supervising agency or professional as may be agreed between the parents in writing, including via email or sms text message) for not less than 3 hours and not more than 6 hours on the Sunday following the first Saturday of each month at times to be agreed and in default from 10am until 4pm;
(b) At such further or other times and upon such conditions as may be agreed between the parents in writing (including via email and sms text message).
6. The parties be at liberty to provide to any psychologist, psychiatrist, counsellor, family therapist, or other medical practitioner:
(a) Copy of the Family Report by Ms L, filed 13 September 2023;
(b) Copy of the Report and Affidavit by Dr B, filed 1 April 2022; and
(c) Copy of the DFFH sec 69ZW Report dated 30 June 2022;
(d) Copy of these reasons.
7. The Father is to notify the Mother of any illness or injury sustained by the children and advise her of the any treating medical practitioner appointed to treat that illness or injury.
8. The Father is to provide the Mother with any written report received from the children’s treating medical practitioners or allied health professionals.
9. The Father provide a copy of these orders to the children’s medical practitioners and the children’s schools.
10. The Mother, her servants and/or nominees, be and is hereby restrained from:
(a) Attending any residence which the Father and the children reside
(b) Attending the children’s school which they attend ;
(c) Discussing health issues with the children (or either of them); and
(d) Attending upon any medical practitioner to seek prescriptions and/or referrals for or on behalf of the children (or either of them);
unless otherwise agreed in writing;
11. Within seven days, the mother sign and return any passport application for the children to the father. If the mother fails to return the application, the father be permitted to apply for a passport and any subsequent renewal(s) for the children notwithstanding he does not have the consent in writing of the Mother, such passport to be at the expense of the Father to pursuant ss7 and 11 of the Australian Passports Act 2005 (Cth).
12. The Father be authorised to provide a copy of these orders to the Australian Passport Office.
13. Pursuant to s65Y of the Family Law Act 1975 (Cth) the children be permitted to travel internationally with the Father without the permission of the Mother subject to order 15.
14. The Father be at liberty to travel overseas with the children provided that the Father:
(a) Provides the Mother with 4 weeks’ notice; and
(b) No later than 2 weeks’ prior to the travel, provides the Mother with a travel itinerary that includes details of return flights, accommodation arrangements and destinations which the children will be travelling.
15. The Independent Children’s Lawyer arrange and meet with the children to explain these Orders to the children.
16. The order appointing the Independent Children’s Lawyer be discharged effective as and from 31 March 2024.
17. All extant applications be dismissed.
THE COURT ORDERS BY CONSENT THAT:
18. The parties shall meet at Suburb M Train Station for changeover unless otherwise agreed between the parents in writing.
19. Each parent is authorised to obtain any information from the children’s school usually disseminated to parents, including but not limited to school photos, reports and newsletters.
20. The Father provide a copy of these Orders to the children’s schools.
21. Each parent communicate via email or text message and all communication is to solely relate to the children.
22. Each parent is to keep the other informed of any change to their email address and/or mobile telephone number within 24 hours of any change.
23. Each of the parents, their agent/s and/or nominees be and are hereby restrained from:
(a) Abusing, insulting, belittling, rebuking, intimidating, harassing or otherwise denigrating the other parent or any member of their household within the hearing of the children (or either of them) or allowing anyone else to do so;
(b) Discussing the evidence filed or given in these proceedings to and/or within the hearing or presence of the children (or either of them) or allowing anyone else to do so; and
(c) Knowingly allowing the children (or either of them) to have access to any document procured in relation to these proceedings to allowing anyone else to do so.
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
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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