FAMILY COURT OF AUSTRALIA
| CORREIA & DAVILA (NO. 2) | [2019] FamCA 780 |
| FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child – Where the mother seeks orders that the child remain living with her and the child spend significant and substantial time with the father – Where the father seeks orders that the child live with him and spend time with the mother – Where the Independent Children’s Lawyer supports the substantive orders as sought by the mother – Where there has been instances of family violence between the mother and her new husband – Where the father alleges that there is an unacceptable risk to the child of psychological harm in being exposed to family violence between the mother and the mother’s new husband while the child is in the mother’s care – Where the Court finds that the mother and the mother’s new husband have taken steps to control anger and avoid family violence in the future – Where the Court finds that it is in the best interests of the child to live with the mother and spend substantial and significant time with the father – Orders made. |
| Family Law Act 1975 (Cth) ss. 4AB, 43(1)(c), 43(1)(ca), 60B(1), 60CA, 60CC, 61DA, 65DAA, 65DAC(2), 65DAC(3). |
| Adamson & Adamson (2014) 51 Fam LR 626 at 642 The Hon. Richard Chisholm, “Unacceptable risk – a comparison of the Family Law and Care jurisdictions,” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) |
| APPLICANT: | MS CORREIA |
| RESPONDENT: | MR DAVILA |
| INDEPENDENT CHILDREN’S LAWYER: | BRIAN SAMUEL & ASSOCIATES |
| FILE NUMBER: | SYC | 4374 | of | 2014 |
| DATE DELIVERED: | 29 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 22, 23, 24 & 25 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | WMD Law |
| THE RESPONDENT APPEARING IN PERSON: | Mr Davila |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
All prior parenting Orders be discharged.
Ms Correia (“the mother”) shall have sole parental responsibility for X (“the child”) born … 2013.
The child shall live with the mother at all times except as otherwise provided for in these Orders.
The child shall live with Mr Davila (“the father”) as follows:
(a)From after school Friday to before school Monday with such time to commence on the weekend that the child would have been in the father’s care in accordance with the Orders of 12 October 2017 and continue…
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- Case
- [2019] FamCA 780
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child in light of the allegations of family violence and the steps taken by the mother and her husband to address anger management and prevent future violence. The court also had to consider the competing parenting arrangements proposed by each parent.
The court found that the mother and her husband had taken steps to manage anger and avoid future family violence. Applying the paramount consideration of the child's best interests, the court determined that it was in the child's best interests to live with the mother and spend substantial and significant time with the father.
Consequently, the court discharged all prior parenting orders and made new orders. These orders stipulated that the child would live with the mother, with specific provisions for the child to live with the father on alternate weekends, mid-week overnight stays, and during specified holiday periods. The orders also included detailed arrangements for communication between the parents, travel, school matters, and prohibitions against exposing the child to violence, denigration of parents, or discussing proceedings with the child. Furthermore, the mother and her husband were ordered to attend marriage counselling, and both parents were directed to enrol the child in a specific program.
Orders
Orders of the court
1.
All prior parenting Orders be discharged.
2.
Ms Correia (“the mother”) shall have sole parental responsibility for X (“the child”) born … 2013.
3.
The child shall live with the mother at all times except as otherwise provided for in these Orders.
4.
The child shall live with Mr Davila (“the father”) as follows:
(a) From after school Friday to before school Monday with such time to commence on the weekend that the child would have been in the father’s care in accordance with the Orders of 12 October 2017 and continue in each alternate week thereafter;
(b) From after school Wednesday until before school Thursday with such time to commence on the Wednesday that the child would have been in the father’s care in accordance with the Orders of 12 October 2017 and continue in each alternate week thereafter;
(c) From 2.00 pm Christmas Day until 2.00 pm Boxing Day in 2019 and in each alternate year thereafter;
(d) From 9.00 am Christmas Eve until 2.00 pm Christmas Day in 2020 and in each alternate year thereafter;
(e) On the child’s birthday at times to be agreed between the parties and failing agreement, from 3.00 pm to 6.00 pm if the child’s birthday falls on a weekday and from 12.00 pm until 4.00 pm if the child’s birthday falls on a weekend;
(f) On the father’s birthday at times to be agreed between the parties and failing agreement, from 3.00 pm to 6.00 pm if the father’s birthday falls on a weekday and from 10.00 am until 5.00 pm if the father’s birthday falls on a weekend;
(g) On Father’s Day from 5.00 pm on the Saturday immediately before Father’s Day until before school on the Monday immediately following Father’s Day;
(h) For one half of the NSW school holiday periods at times to be agreed between the parties and failing agreement, for the first half in odd numbered years and the second half in even numbered years. For the purposes of this Order:
(i) The time provided for in Orders (4)(a) and (4)(b) are suspended during the school holiday period;
(ii) To determine when the time provided for in Order (4)(a) shall recommence, the parties shall continue with the alternate weekend rotation that would have taken place but for the school holiday period; and
(iii) The school holiday period shall commence from after school on the last day of the school term and the school holiday period shall conclude 5.00 pm on the day immediately before the first day of school. The halfway point of the school holiday shall be at 5.00 pm on the day that falls halfway through the total number of days in the school holiday period.
(i) At any other times as agreed between the parties.
5.
That the father’s time with the child is suspended, so the child can spend time with the mother, on the following occasions:
(a) From 9.00am Christmas Eve until 2.00 pm Christmas Day in 2019 and in each alternate year thereafter;
(b) From 2.00 pm Christmas Day until 2.00 pm Boxing Day in 2020 and in each alternate year thereafter;
(c) From 5.00 pm on the Saturday immediately before the Mother’s Day until before school on the Monday immediately following Mother’s Day;
(d) In the event the child is in the father’s care on the child’s birthday then the mother shall spend time with the child from 12.00 pm until 4.00 pm if the child’s birthday falls on the weekend; and
(e) On the mother’s birthday from 3.00 pm to 6.00 pm if the mother’s birthday falls on a weekday and from 10.00 am until 5.00 pm if the mother’s birthday falls on a weekend.
6.
For the purposes of these Orders:
(a) Subject to Order (20) below, each parent is at liberty to have a nominee, that is known to the child, facilitate the changeovers and transport, provided that they give not less than two (2) hours’ notice to the other parent of the details of the nominee;
(b) If the father’s time with the child falls on a day that the child attends school, the father or his nominee shall collect and/or return the child to and from his school at the commencement and conclusion of each period; and
(c) If the father’s time with the child falls on a day that is not a school day, including pupil free day or public holidays, then the father’s time with the child shall be extended to 6.00 pm on that day and the father or his nominee shall deliver and/or return the child to the mother or her nominee at the McDonalds in Suburb D.
7.
That the mother and father shall both do all acts and things and sign all documents necessary to ensure that the child has a valid Australian passport. To facilitate this, the mother shall provide to the father a completed passport application form and the father shall sign and complete all information that is appropriate and return the form to the mother within two (2) days of receipt of the form. In the event the father refuses to complete and return the passport application within two (2) days of receiving it then the mother is permitted to apply for a passport for the child without the father’s consent.
8.
That the mother and father are permitted to remove the child from the Commonwealth of Australia provided that:
(a) The travelling parent provide the other parent with 28 days’ notice of their intention to travel with the child;
(b) The travelling parent provide the other parent with a full itinerary of their proposed travel, including details of return flights/tickets, transfer(s), accommodation and contact details for the child not less than 21 days prior to departure;
(c) Within seven (7) days of receiving the information as provided for in Order (8)(b), the non-travelling parent shall provide the travelling parent with written notice of their consent for the child to travel. Such consent cannot be unreasonably withheld; and
(d) The travelling party shall be responsible for the payment of the child’s flights and accommodation during the time they are travelling with them.
9.
The mother shall hold the child’s passport and make it available to the father upon his compliance with Order (8) and the father shall return the child’s passport to the mother within 48 hours of the child returning to the Commonwealth of Australia.
10.
In the event the travelling party has complied with their obligations pursuant to Order (8) and the non-travelling parent does not provide their written consent pursuant to Order (8)(c), which leads to the travelling parent approaching the Family Court of Australia or the Federal Circuit Court of Australia with respect to the child leaving the Commonwealth of Australia and they obtain those Orders, the non-travelling parent shall pay the costs of the travelling parent on an indemnity basis including any counsel’s fees for approaching the Court for such Orders.
11.
That all communications between the mother and father, except in the case of an emergency, shall take place via the ‘Our Family Wizard Co-Parenting App’ (“Family Wizard App”) and for the purposes of this Order the mother and father shall within seven (7) days from the date of these Orders both do all acts and things and sign all documents necessary to cause the Family Wizard App to be downloaded onto their respective mobile phones and for the Family Wizard App to be made available for their use at all times.
12.
That the parties shall keep each other informed of their residential address and home and mobile contact phone numbers and provide the to the other party details of any changes, with at least one (1) months’ notice in advance of any proposed change of those contact details.
13.
That the parties notify each other in the event of any illness or injury occurring to the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the child.
14.
That both parties be permitted to liaise directly with the child’s school and sporting bodies to obtain any necessary information about the child’s progress and both parties are to forthwith authorise the school and sporting bodies in writing to facilitate this.
15.
That both parties forthwith authorise the principal of any school attended by the child to provide the other parent with copies of the child’s school reports, newsletters, notices as they fall due and to inform the each parent of any school activity which parents are invited to attend.
16.
The mother and father shall both do all acts and things and sign all documents necessary to ensure that both parents are noted as the enrolling parents and emergency contacts at the child’s school and extracurricular activities.
17.
The father be and is hereby restrained from removing the child from his school, except as permitted in accordance with Order (4) of these Orders, without the mother’s knowledge and written consent.
18.
Both parents are restrained from approaching the other parent’s place of residence unless that parent has been invited to attend by the other parent.
19.
Both parents are restrained from passing information or messages through the child to the other parent.
20.
The mother be and is hereby is restrained from nominating or permitting her husband, Mr B, to be present at changeover.
21.
That the father be and is hereby restrained from discussing Mr B, any allegations raised in these proceedings, or these proceeding generally with the child or permitting or authorising any third party from doing so.
22.
That the mother and the father be restrained from the following:
(a) Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the mother, the father or any other member of either party’s household;
(b) Physically disciplining the child;
(c) Denigrating the other parent, their respective partners, family or friends directly or in the presence or hearing of the child and both parents will use their best endeavours to ensure that no one else does so and shall remove the child from an environment where denigration is occurring;
(d) Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so.
(e) Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
(f) Being under the influence of alcohol in the presence of the child or whilst the child is in his or her care and using, ingesting or administering to himself or herself any illicit or non-prescribed drugs (other than over the counter medication); or
(g) Bringing the child into contact with any person under the influence of illicit drugs or alcohol in excess.
23.
That within seven (7) days from the date of these Orders, the mother and father shall both do all acts and things and sign all documents to cause the child to be enrolled to complete the DD program with EE Group. For the purposes of this Order:
(a) Both parents shall ensure the child completes all intake programs;
(b) Both parents shall ensure the child attends all scheduled appointments and sessions when the child is in their respective care; and
(c) Both parents shall follow all recommendations, referrals and directions made by the Anchor program.
24.
The mother and Mr B shall attend upon a marriage counsellor for not less than four (4) occasions every three (3) months, following the date of these Orders, and shall provide to the father evidence of their attendance at such counselling. THE COURT NOTES the undertaking given by Mr B to attend upon such counselling.
25.
In the event that the parents have any future dispute in respect to parenting issues or orders relating to the child, they shall first make all reasonable endeavours to resolve such dispute either by way of negotiation or by attending mediation prior to initiating any Court proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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