CAIN & MCCALLUM
[2017] FCCA 359
•2 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAIN & MCCALLUM | [2017] FCCA 359 |
| Catchwords: FAMILY LAW – Parenting Orders – Support of Independent Children’s Lawyer – regime provides platform for parents to ‘move forward’ with the benefit that children may achieve a meaningful relationship with their parents. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC |
| Cases cited: Oswald & Karrington [2016] FamCAFC 152 |
| Applicant: | MR CAIN |
| Respondent: | MS MCCALLUM |
| File Number: | BRC 5434 of 2014 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 21 February 2017 |
| Date of Last Submission: | 21 February 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 2 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Green |
| Solicitors for the Applicant: | Doyle Family Law |
| The Respondent: | Appearing on her own behalf |
| Counsel for the Independent Children's Lawyer: | Mr Bunning |
| Solicitors for the Independent Children's Lawyer: | Sarah Cleeland Family Lawyers |
ORDERS
That the following parenting Orders shall apply for the children, X born (omitted) 2004 (“X”) and Y born (omitted) 2007 (“Y”) (“the children”).
Parental Responsibility
That the applicant father (“the father”) and the respondent mother (“the mother”) have equal shared parental responsibility for all major long term parenting issues affecting the children, which include but are not limited to:
(a)education;
(b)religious and cultural upbringing;
(c)health;
(d)name; and
(e)living arrangements so far as changes to those arrangements may impact on the time the children spend with each parent.
That the parents have sole responsibility for decisions relating to the day to day care, welfare and development of the children during periods when the children are living with or spending time with them.
Living Arrangements
That unless otherwise agreed, the children are to live with the father and spend time with the mother as follows:
(a)in relation to Y:
(i)for a period of twelve (12) months from the date of these Orders, each alternate weekend on a supervised basis at either, and at the mother’s election:
1.a contact centre as agreed by the mother and the father at all such times as the contact centre is able to facilitate between 10.00am on Saturday and 2.00pm on Sunday; or
2.under the supervision of the maternal grandparents, from 10.00am on Saturday until 2.00pm on Sunday;
(ii)thereafter, and for a period of twelve (12) months, each alternate weekend from after school on Friday (or from 3.00pm on Friday, if Friday is not a school day) until 7.00pm on Sunday on an unsupervised basis;
(iii)thereafter, and only if the mother lives within twenty (20) kilometres of Y’s school, for a period of twelve (12) months each alternate weekend from after school Friday (or from 3.00pm on Friday, if Friday is not a school day) until before school on Monday (or 3.00pm on Monday if Monday is not a school day) on an unsupervised basis;
(iv)thereafter, and only if the mother lives within twenty (20) kilometres of Y’s school, from after school each alternate Friday (or from 3.00pm on Friday if Friday is not a school day) until before school the following Friday (or until 3.00pm on Friday if Friday is not a school day) on an unsupervised basis;
(v)in relation to X, in accordance with and on such terms as X’s treating psychologist may recommend, provided that the psychologist must be asked whether X should come into personal contact with the mother not less than nine (9) months after the date of these orders.
That if the time that the mother is to spend with the children is to take place on a supervised basis at a contact centre as agreed by the mother and the father, the mother must meet the costs of the contact centre and both parties will complete all intake requirements within 10 working days of the mother’s written request.
That for the purposes of Order 4(a)(i) changeover is to occur at the fathers residence or the contact centre as agreed by the mother and the father.
That for the purposes of Orders 4(a)(i), Order 4(a)(ii) & Order 4(a)(iii) changeover is to occur at the child’s/children’s school or at the father’s residence.
That if the Monday or Friday referred to in Orders 4(a)(i), Order 4(a)(ii) & Order 4(a)(iii) is not a school day, the mother shall be responsible for the collection of the child/children from the father’s residence at the commencement of her time, and return of the child/children to the father’s residence at the conclusion of her time.
Special Days
That regardless of the arrangements in place for the children under Order 4 of these Orders (except that the provisions in relation to supervision will be the same as the provisions that apply on the alternate week or weekend prior to the special occasions), and subject to Order 10 of these Orders, Y shall spend time with the mother and the father on special occasions as follows:
(a)from 5.00pm on Christmas Eve until 8.00pm on Boxing Day in odd numbered years with the mother and in even numbered years with the father;
(b)for Y’s birthday (with the parent with whom he is not living on the relevant day):
(i)if a day at school, from after school until 8.00pm; and
(ii)if not a day at school, from 3.00pm until 8.00pm;
with the parent with whom he is not living at the time to be responsible to collect and return the child;
(c)for either parent’s birthday (with the parent with whom he is not living on the relevant day):
(i)if a day at school, from after school until 8.00pm;
(ii)if not a day at school, from 3.00pm until 8.00pm;
with the parent with whom he is not living at the time to be responsible to collect and return the child;
(d)with the father on Father’s Day from 9.00am to 5.00pm; and
(e)with the mother on Mother’s Day from 9.00am to 5.00pm.
Supervision/Suspension of Time
That the time that the mother spends with the children under these Orders, is conditional upon the mother abstaining from alcohol at all times, whether or not the children are in her care.
That the mother must obtain pathology requests for carbohydrate-deficient transferrin (CDT) and liver function (LF) testing from her medical practitioner and attend the pathology collection facility with valid photo identification on the first and third Monday of each calendar month, for the purposes of providing all such samples as are necessary to facilitate CDT and LF testing. This requirement applies for thirty-six (36) months after:
(a)the date of these Orders; or
(b)the occurrence of an event specified in Order 16 of these Orders.
That the mother must to provide all CDT and LF test results (including interpretation) to the father concurrently with the release of the test results to the mother. For this purpose, the mother must request that the test results be provided to her within (7) days of the conduct of the test.
That the mother must undertake alcohol breath testing (“breathalyser test”) for acute alcohol ingestion in a manner specified by the father in writing by text or email. The father may only request such a test between the hours of 6.00am and 10.00pm. The mother must undertake the test as soon as reasonably practicable, but no later than (4) hours after the father’s written request (excluding the time between 10.00pm and 6.00am from calculation of the (4) hours. The means of breathalyser testing may include:
(a)the use of a breathalyser by the mother:
(i)where the mother uses her own breathalyser; and
(ii)provides contemporaneous visual verification that the breath sample provided is hers; and
(iii)transmits the results of the test in real time to an app on the father’s mobile phone; or
(b)the use of a breathalyser at a hospital or pathology collection centre acceptable to the father, with valid photo identification and immediate communication of the test results, by the mother to the father. If the father requires authentication of the result, the mother must provide any authority to the father that is required to facilitate such authentication.
That the father is at liberty to make the requests for a breathalyser test under these Orders on up to two (2) occasions per calendar month for thirty-six (36) months after:
(a)the date of these Orders; or
(b)the occurrence of an event specified in Order 16 of these Orders.
That responsibility for payment of costs associated with testing is as follows:
(a)the mother and the father must share equally in the pathology fees charged by the pathology practice for CDT and LF tests under these Orders that are not payable by Medicare; and
(b)for this purpose the father must reimburse the mother for such fees within fourteen (14) days of the mother providing verification of her payment or of the amount due and payable;
(c)for the removal of doubt, the father is not liable for any part of the mother’s fees such as the cost of obtaining and operating her own breathalyser unit, referrals, general practitioner or medical specialist consultations or other tests; however
(d)the father is responsible for the costs, if any, of installing any mobile app for the purpose of receiving breathalyser test results onto his mobile phone.
That in the event that:
(a)the mother refuses or fails to comply with the provisions of these orders requiring her to undertake CDT and LF and/or breathalyser testing; or
(b)the results obtained from:
(i)CDT and LF testing indicate that the mother has used alcohol; or
(ii)Breathalyser testing indicate that the mother has used alcohol; or
(c)the mother is convicted of any offence (including any motor vehicle or road traffic offence) relating to the consumption of alcohol or substance abuse; or
(d)the mother attempts suicide or serious self-harm; or
(e)the mother is a respondent bound by an Order (other than Orders in force at the time of the making of these Orders) under the Domestic and Family Violence Protection Act 2012 (Qld) as amended or equivalent interstate laws; or
(f)the mother is subject to an Order or to involuntary treatment under the Mental Health Act 2000 (Qld) as amended or equivalent interstate laws; or
(g)the mother fails to comply with Orders 11 or 13 of these Orders;
the time that the children spend with the mother will revert to the commencement of the requirements and timetable set out in Orders 4(a) of these Orders.
That the mother must:
(a)engage in continuing alcohol management and treatment with her treating psychiatrist, (or such other professional as Dr G may recommend) with such frequency and for such duration as Dr G (or any alternate treating practitioner) may recommend; and
(b)notify the father of the identity of any alternate treating practitioner within seven (7) days of retaining that practitioner; and
(c)authorise Dr G and any alternate treating practitioner to verify to the father that she is engaging in such alcohol management and treatment.
Communication
That the father shall facilitate Y communicating with the mother by telephone at the following times (with such telephone calls to be supervised by the father):
(a)when initiated by the mother before 8.00pm on weekdays and 8.30pm on weekends
(b)at any time as initiated by Y; and/or
(c)at such other times as may be agreed between the parents;
with all telephone calls and text messages to be child and age appropriate with the parents not to denigrate the other parent in any way nor discuss any adult issue in the telephone calls or text messages with the child.
That the father shall facilitate X’s telephone communications with the mother by telephone in accordance with any recommendations of X’s treating psychologist.
Non-Denigration
That each parent must refrain from denigrating the other in the presence or hearing of the children and shall use his and her best endeavours to ensure other persons do not denigrate the other parent in the presence or hearing of the children.
Notifications
That each parent shall:
(a)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(b)inform the other parent as soon as reasonably practicable by phone in the first instance, and by text if there is no response, of any emergency medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent (at that parent’s cost);
(c)authorise the schools or care centres 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); and
(d)authorise and direct and extra-curricular organisation upon which the children or either of them may attend to provide to the other party any information and copies of documentation as may be requested by him or her from time to time (at that parent’s cost).
Other matters
The mother is at liberty to attend Y’s class on at least one occasion each school term, and Y’s other extra-curricular activities that parents are invited to attend such as Y, (and in addition to any occasion requested by Y) contingent on her providing the father with forty-eight (48) hours of her intention to do so and provided such attendance complies with any school requirements.
That prior to her discharge the Independent Children’s Lawyer shall meet with the children on a date and time to be agreed between the father and the Independent Children’s Lawyer to explain to the children these Orders.
That upon the meeting taking place in Order 23 the Independent Children’s Lawyer is discharged.
That pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That all outstanding applications are dismissed.
That parenting Orders made prior to the making of these Orders are discharged.
IT IS NOTED that publication of this judgment under the pseudonym Cain & McCallum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5434 of 2014
| MR CAIN |
Applicant
And
| MS MCCALLUM |
Respondent
REASONS FOR JUDGMENT
Introduction
On 21 February 2017 the Court made orders by consent, in parenting proceedings, relating to X born (omitted) 2004 and Y born (omitted) 2007. These reasons confirm the making of those orders.
At the hearing of the application, the Court received the considerable assistance of Mr Green of Counsel for the applicant father and Mr Bunning of Counsel on behalf of the Independent Children's Lawyer. The respondent mother appeared in person. Although the mother appeared in person, the Court was advised that she had been assisted by solicitors over the preceding day in relation to the terms of the consent orders that were signed by each of the parties and the Independent Children's Lawyer on 21 February 2017.
Part VII of the Family Law Act 1975 (Cth) concerns the subject, Children. Part VII has been described in many authorities as prescribing a legislative pathway which the Court should follow.
As the Full Court of the Family Court of Australia has recently confirmed, authorities which refer to Part VII as prescribing a legislative pathway and as imposing an obligation upon a Court applying Part VII to follow a legislative pathway, are properly understood as serving to emphasise that the statutory considerations relevant to a particular case must be considered and applied as directed by the statute: see, for example, Oswald & Karrington [2016] FamCAFC 152 at [47] (Ainslie-Wallace, Aldridge & Kent, JJ).
It is axiomatic that in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s.60CA. In these proceedings, in determining the best interests of the children there are two primary considerations which are to be taken into account. The two primary considerations are as set out in s.60CC(2) of the Act, and accordingly, I must consider:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence.
See ss.4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).
I have noted that these proceedings were commenced on 20 June 2014; that is, after certain legislative amendments to Part VII of the Act came into effect on 7 June 2012. I am therefore required to give greater weight to the need to protect the children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence: s.60CC(2A).
In the circumstance that the Court was being asked to consider consent parenting orders, s.60CC(5) confers a discretion on the Court whether it is to have regard to all or any of the matters in sub-ss.60CC(2)-(3).
There was a considerable body of material filed in this proceeding. Regrettably, it has had a very troubled history.
I have paid close regard to the materials relied upon by the parties, including their case outlines. In addition, I was assisted by the detailed and considered case outline that had been prepared on behalf of the Independent Children's Lawyer.
In light of the parties consent to their orders it is unnecessary that these reasons rehearse the background to the proceedings, the evidence relied upon by the parties or their competing contentions. It is sufficient to record that the parties have negotiated and been able to agree upon the terms of parenting orders as reflected in their consent orders.
Mr Bunning’s submissions drew attention to two important aspects of the parties’ consent orders. First, that they represented an accord which the parties themselves had been able to agree upon. Secondly, the terms of their accord as reflected in their consent orders would provide them with a platform from which they could, in effect, “move forward”. I observe that those submissions received the endorsement both of the applicant's counsel and the respondent.
I endorse the correctness and the good sense of those submissions. The Court commends the parties for their significant effort in reaching agreement as reflected in their consent orders and has made those orders as sought by consent at their request and as supported by the Independent Children's Lawyer.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 6 March 2017
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