FEDERAL CIRCUIT COURT OF AUSTRALIA
| CERWIN & CERWIN (No.3) | [2020] FCCA 2407 |
| Catchwords: FAMILY LAW – Final arrangements for care of child aged 13 (12 at date of trial) – completed proceedings in 2013 provided for child to live in City B with mother and spend regular defined periods of time with father in Adelaide – high conflict – allegations child subject to abuse in father’s care – father alleges allegations concocted in an attempt to alienate child from him – father seeks change of living arrangements – matters to be considered – unacceptable risk – parental insight – meaningful relationship – effects on child of change of circumstances – best interests. |
| Legislation: Evidence Act1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 65L |
| Cases cited: B & B (1993) FLC 92-357 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Bartel & Schmucker (No 3) [2012] FamCA 1094 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Fox v Percy (2003) 214 CLR 118 H v W (1995) FLC 92-598 at 81,944 M & M (1988) FLC 91-979 Mazorski v Albright (2007) 37 FamLR 518 MRR v GR (2010) 240 CLR 461 N & S and the Separate Representative (1996) FLC 92-655 R & R: Children’s Wishes (1999) 25 Fam LR 712 Cerwin & Cerwin [2013] FMCAfam 160 Cerwin & Cerwin [2019] FCCA 3184 Cerwin & Cerwin (No.2) [2019] FCCA 3339 Russell & Russell & Anor [2009] FamCA 28 Slater & Light [2013] FamCAFC 4 Stevenson v Hughes (1993) FLC 92-363 W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 |
| Applicant: | MS CERWIN |
| Respondent: | MR CERWIN |
| File Number: | ADC 4232 of 2012 |
| Judgment of: | Judge Brown |
| Hearing dates: | 17, 18, 19 July 2019, 2, 3, 4 October 2019, 10 March & 7 April 2020 |
| Date of Last Submission: | 7 April 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 31 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lindsay |
| Solicitors for the Applicant: | Harry Alevizos |
| Counsel for the Respondent: | Mr Dillon |
| Solicitors for the Respondent: | Carlin Lawyers |
ORDERS
The parties have equal shared parental responsibility for the child X born in 2007 (hereinafter referred to as “the child”).
In the exercise of this equal shared parental responsibility for the child the parties are to consult with each other in respect of all major long term decisions pertaining to the child, which include but are not limited to, issues concerning the following:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health and any special needs;
(d)The child’s names; and
(e)Any changes to the child’s living arrangements, which significantly interferes with the operation of these orders, particularly with the specific arrangements for the child to spend time with each parent.
The parties shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email…
Continue reading CERWIN & CERWIN (No.3)
Sign in free to access the full text
- AGLC
- Cerwin and Cerwin (No.3) [2020] FCCA 2407
- Case
- [2020] FCCA 2407
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, specifically addressing the risk of harm, the parents' insight into their conduct, the importance of maintaining a meaningful relationship with both parents, and the potential effects on X of any change in circumstances. The central legal issue was whether the existing living arrangements should be varied, and if so, what new arrangements would best serve X's welfare.
Judge Brown's reasoning focused on the paramountcy of X's best interests. The court considered the allegations of abuse and the father's alleged lack of insight into the impact of his behaviour on X. The court also weighed the importance of X maintaining a relationship with her father, while acknowledging the need to protect her from unacceptable risk. The court applied principles relating to parental responsibility, the need for clear communication and co-operation between parents, and the specific considerations outlined in the *Family Law Act 1975* regarding children's welfare.
The court made orders for equal shared parental responsibility, with X to live with the mother. Specific time arrangements were detailed for X to spend with the father, including provisions for school holidays and communication between parents. Injunctions were granted restraining both parents from abusing or denigrating the other in X's presence, discussing proceedings with X, physically disciplining X, or consuming alcohol or marijuana to excess when X is in their care. The court also ordered the appointment of a family consultant to assist the mother in complying with the orders regarding X's time with the father.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the child X born in 2007 (hereinafter referred to as “the child”).
2.
In the exercise of this equal shared parental responsibility for the child the parties are to consult with each other in respect of all major long term decisions pertaining to the child, which include but are not limited to, issues concerning the following:
(a) The child’s education (both current and future);
(b) The child’s religious and cultural upbringing;
(c) The child’s health and any special needs;
(d) The child’s names; and
(e) Any changes to the child’s living arrangements, which significantly interferes with the operation of these orders, particularly with the specific arrangements for the child to spend time with each parent.
3.
The parties shall:
(a) Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b) Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child as soon as is reasonably practicable but no later than 24 hours after such consultation and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and
(c) Inform the other parent as soon as is reasonably practicable but no later than 24 hours after such issue has arisen of any medical issue, significant health issue or significant illness or injury suffered by the child. This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.
4.
The parents authorise by this order, the school, attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same).
5.
Each parent is at liberty to attend at the child’s school or other place at which she engages in a recreational or extra-curricular activity for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
6.
The parties utilise a communication book, electronic app or other electronic format to exchange information in writing regarding the child’s education; changing sleep requirements; dietary, medical, extracurricular, and behavioural needs and preferences; and any appointments the child has with professional people as they are scheduled to occur.
7.
The child live with the mother.
8.
The child spend time with the father as follows:
(a) During each school term, on one weekend, from the conclusion of school on Friday until 5.00 pm the following Sunday or 5.00 pm the following Monday in the event that Monday is a public holiday;
(b) For ten days in each short-term school holiday at times to be agreed between the parties and in default of agreement from 5.00pm on the last Friday of term until 5.00pm ten days thereafter;
(c) For the end of year school holiday commencing in 2020/2021 for the first and second weeks and fourth and fifth weeks of the Christmas school holidays which will not encompass Christmas Day and in each alternate year thereafter; NOTING THAT if the father’s time concludes early to accommodate Christmas Day (for the mother) the father’s time in the fifth week will be extended;
(d) For the end of year school holiday commencing in 2021/2022 for the second and third and fifth and sixth week of the Christmas school holidays, which will encompass Christmas day and in each alternate year thereafter;
(e) At such further and other times as agreed between the parties in writing, which may be by email, during term time for periods of up to three nights and upon the father providing the mother with 14 days’ notice in writing which may be by email;
(f) At such further or other times as may be agreed by the father and the mother.
9.
The parties will use their best endeavours to ensure that wherever possible the time spending arrangement outlined in order (8) hereof will be configured so that the child spends Mother’s Day with the mother and Father’s Day with the father and the child spends alternate Christmas Days with each of the parties.
10.
The time specified in orders (8) (a), (b), (c) & (d) hereof take place in Adelaide, unless the parties agree otherwise in writing, which may be by email.
11.
The time specified in orders (8) (e) & (f) take place in City B, unless the parties agree otherwise in writing, which may be by email, with the father to bear any costs of travel arising for the child.
12.
The father be restrained and an injunction issue restraining the father from:
(a) imposing on the child’s privacy whilst she is bathing, showering or undertaking her ablutions;
(b) entering the child’s bedroom after she has retired for the night without her permission.
13.
To give effect to order (10) hereof the father is to:
(a) book the necessary air flights between City B, Adelaide and return and advise the mother 14 days prior to the date of travel of the date and time of departure of each necessary flight and provide her with flight numbers and any other salient details;
(b) pay for the costs of the child’s travel incurred between City B and Adelaide;
(c) ensure that the relevant flights are booked as close as possible to the times scheduled for the father’s time with the child to commence.
14.
To give effect to order (10) hereof the mother is to:
(a) reimburse the father the costs of the child’s travel incurred in returning from Adelaide to City B seven days prior to the date on which the child is to be returned to City B;
(b) deliver the child to the City B Airport at the time directed by the relevant carrier and direct the child to board the relevant flight.
15.
All handovers that do not take place at the airport take place outside the City B Police Station or such other place as the parties agree in writing, which may be by email.
16.
The father facilitate the child making a phone or skype/video call to the mother between 6.30pm and 7.00pm each Sunday or any other time or times as agreed between the parties in writing, which may be by email, when she is in the care of the father, with the father to accord the child privacy during each such call.
17.
The mother facilitate the child making a phone or skype/video call to the father between 6.30pm and 7.00pm each Sunday or any other time or times as agreed between the parties in writing which may be by email, when she is in the care of the mother, with the mother to accord the child privacy during each such call.
18.
The parties be restrained and injunctions granted restraining each of them from:
(a) Abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so;
(b) Discussing the proceedings in the presence of the child or from permitting any other person to do so;
(c) Physically disciplining the child when in either party’s care;
(d) Consuming marijuana or consuming alcohol to excess during any period the child is in their respective care or twenty-four hours beforehand.
19.
The mother ensure that the child attend school on a regular and timely basis and that in the event that the child is absent from school on grounds of illness or other family emergency the mother provide to the father a medical certificate or written explanation of such absence within 72 hours of it occurring.
20.
Pursuant to section 65L of the Family Law Act 1975 the Senior Family Consultant of Child Dispute Services at Adelaide appoint a family consultant to assist the mother to comply with these orders in respect of X spending time with her father and to this end:
(a) The family consultant so appointed arrange a conference with the child and the mother, which may be by video conferencing, to explain the orders to X, including that the costs of her air travel is to be shared between the parties and X’s Rules as memorialised in order (12) hereof are to be applied at all times that the child is in the care of her father.
21.
The mother provide her therapist and/or psychologist with a copy of these reasons for judgment as soon as is practicable.
22.
Any contravention application or other application initiated by the father in respect of these orders or any breach thereof be brought to the urgent attention of the trial judge and listed with the degree of expedition deemed appropriate by him.
23.
All other applications be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.