FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Calderon & Shepherd [2022] FedCFamC2F 606
File number(s): PAC 5306 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 11 May 2022 Catchwords: FAMILY LAW – Parenting - best interests of child - Orders made Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA, 65D Cases cited: Knight & Knight [2016] FamCA 1085 Division: Division 2 Family Law Number of paragraphs: 263 Date of last submission/s: 29 April 2022 Date of hearing: 27, 28 and 29 April 2022 Place: Parramatta Counsel for the Applicant: Mr Juhasz Solicitor for the Applicant: Claire Heaton Solicitor Counsel for the Respondent: Mr Nowlan Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Solicitor for the Independent Children’s Lawyer: Mark Macdiarmid Family Law Specialist ORDERS
PAC 5306 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CALDERON
Applicant
AND: MR SHEPHERD
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
11 MAY 2022
THE COURT ORDERS THAT:
Discharge of prior Orders
1.All prior parenting orders are discharged.
Equal Shared Parental responsibility
2.The parents shall have equal shared parental responsibility for the child X born in 2013 (‘the child’).
Live with
3.The child shall live with the Father.
Spend time with
4.Subject to the following Orders, the child shall spend time with the Mother as agreed in writing between the parents and failing agreement as follows:
(a)During school term time:
(i)commencing on Friday 13 May 2022, each alternate weekend from after school or 3.00pm on non-school days on Friday until the commencement of school or 9.00am on non-school days on Monday;
(ii)commencing on Wednesday 18 May 2022, each Wednesday from after school or 3.00pm on non-school days until the commencement of school or 9.00am on non-school days on Thursday;
(b)For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the first half of the child’s school holidays in even numbered years, and for the second half of the child’s school holidays in odd numbered years;
(c)For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders, and failing agreement from after school until 6.00pm on school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
(d)From 7.00pm Christmas Eve until 10.00am Christmas Day in 2022 and each alternate year thereafter;
(e)From 10.00am Christmas Day until 10.00am Boxing Day in 2023 and each alternate year thereafter;
(f)From 10.00am until 6.00pm on Mother’s Day in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;
5.The child’s time with the Mother be suspended on the following occasions:
(a)For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the second half of the child’s school holidays in even numbered years, and for the…
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CaseChat Overview and Summary
Judge Newbrun outlined the reasoning behind the court’s decision, emphasizing the importance of equal shared parental responsibility and the need to ensure that the child maintains meaningful relationships with both parents. The court concluded that the child should primarily live with the father but would have substantial and significant time with the mother. The court detailed specific arrangements for the child’s time during school terms, holidays, and special occasions. It also stipulated that the parents must cooperate during handovers, maintain respectful communication, and refrain from exposing the child to contentious issues. The orders included provisions for the child’s health and education, as well as restrictions on the parents’ behaviours to ensure a stable environment for the child.
The final orders discharged all prior parenting orders and established equal shared parental responsibility. The child was to live primarily with the father, with detailed visitation schedules for the mother during school terms and holidays, and specific provisions for special occasions. Both parents were required to maintain open communication and behave respectfully during handovers. Additionally, the court mandated that the mother continue her psychological treatment and comply with prescribed medication. The Independent Children’s Lawyer’s appointment was extended, with an expectation for further mediation to be funded.
Orders
Orders of the court
PAC 5306 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS CALDERON
Applicant
AND:
MR SHEPHERD
Respondent
AND:
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
11 MAY 2022
THE COURT ORDERS THAT:
Discharge of prior Orders
1. All prior parenting orders are discharged.
Equal Shared Parental responsibility
2. The parents shall have equal shared parental responsibility for the child X born in 2013 (‘the child’).
Live with
3. The child shall live with the Father.
Spend time with
4. Subject to the following Orders, the child shall spend time with the Mother as agreed in writing between the parents and failing agreement as follows:
(a) During school term time:
(i) commencing on Friday 13 May 2022, each alternate weekend from after school or 3.00pm on non-school days on Friday until the commencement of school or 9.00am on non-school days on Monday;
(ii) commencing on Wednesday 18 May 2022, each Wednesday from after school or 3.00pm on non-school days until the commencement of school or 9.00am on non-school days on Thursday;
(b) For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the first half of the child’s school holidays in even numbered years, and for the second half of the child’s school holidays in odd numbered years;
(c) For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders, and failing agreement from after school until 6.00pm on school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
(d) From 7.00pm Christmas Eve until 10.00am Christmas Day in 2022 and each alternate year thereafter;
(e) From 10.00am Christmas Day until 10.00am Boxing Day in 2023 and each alternate year thereafter;
(f) From 10.00am until 6.00pm on Mother’s Day in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;
5. The child’s time with the Mother be suspended on the following occasions:
(a) For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the second half of the child’s school holidays in even numbered years, and for the first half of the child’s school holidays in odd numbered years;
(b) From 10.00am Christmas Day until 10.00am Boxing Day in 2022 and each alternate year thereafter;
(c) From 7.00pm Christmas Eve until 10.00am Christmas Day in 2023 and each alternate year thereafter;
(d) For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the Father’s care pursuant to these Orders, and failing agreement from after school until 6.00pm on school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
(e) From 10.00am until 6.00pm on Father’s Day in each year that the child is not ordinarily in the Father care pursuant to these Orders;
6. For the purpose of the School Holidays Orders above, the following will apply:
(a) Each school holiday period shall commence at the conclusion of school on the last day of required school attendance of the child and shall conclude at the commencement of school on the first day of required school attendance for the child;
(b) Changeover is to occur at 5.00 pm on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
(c) In the event that there are two consecutive mid-point days, then changeover is to occur at 5.00 pm on the first of those two mid-point days.
Changeovers
7. Changeovers that do not occur at the child’s school shall occur as agreed between the parents and failing agreement the Father and the Mother shall do all things necessary to ensure that the maternal grandfather, the maternal grandmother or the maternal aunt collect the child at the commencement of time and the Father will collect the child from the maternal grandfather or maternal Aunt’s residence at the conclusion of that time and both parents shall ensure that during changeovers:
(a) Neither parent will enter the other’s home;
(b) Each parent and any other person who may be present will behave in a civil and courteous manner to the other parent;
(c) Each parent and any other person who may be present will conduct themselves in a child focussed manner;
(d) Each parent and any other person who may be present will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other;
(e) Neither parent nor any other person who may be present will discuss issues of any controversy between them.
General Orders
8. Both parents shall keep the other advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their email address and contact telephone number.
9. Each parent shall be permitted to communicate directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress and this Order shall constitute sufficient authority for such communication.
10. Each parent is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
11. Each parent shall do all reasonable things necessary to ensure that they facilitate the child participating in their scheduled extra-curricular activities during such periods that the child is spending time with them.
12. Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
13. Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the child communicating with the other parent by electronic means on a regular basis.
Ongoing treatment
14. The Mother is to continue seeing her treating psychologist and is to comply with any treatment plan/medication prescribed or recommended to her by her treating psychologist and her medical practitioner.
Restraints
15. When the child is in their respective care, each parent is restrained from:
(a) altering the child’s usual place of residence outside of the Greater Sydney (Greater Capital City Statistical Area), as classified by the Australian Bureau of Statistics (‘Greater Sydney’);
(b) Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
(c) Consuming any prescription medication other than as prescribed;
(d) Consuming any illicit substance;
(e) Physically disciplining the child or permitting any other person to do so;
(f) Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(g) Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(h) Permitting the child having access to any of the documents filed in these proceedings;
(i) Communicating any information intended for the other parent through the child; and
(j) Causing the child to be a medium in any way between the Mother and the Father or between the Mother and the Father and any other person.
Continuation of Independent Children’s Lawyer’s Appointment
16. The Independent Children’s Lawyer’s appointment shall continue for a period of 12 months following the date of these Orders, AND THE COURT NOTES THAT the Independent Children’s Lawyer intends to seek funding for the convening of a further mediation between the parties within a further 10 months AND THE COURT REQUESTS THAT Legal Aid NSW give consideration to funding such mediation pursuant to the COMP program.
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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