FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Coulson & Wayfield [2024] FedCFamC2F 979
File number(s): HBC 555 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 26 July 2024 Catchwords: FAMILY LAW – parenting – allegations that father poses unacceptable risk – allegations involving family violence, mental health and alcohol and substance abuse – dispute about whether there should be joint or sole decision making about major or long-term issues – whether there should be an order that the father not spend time with the children – mother withholding children who wish to spend time with father – allegations not all established – no contest that children should primarily live with the mother – interim orders for children to spend time with the father Legislation: Family Law Act 1975 (Cth) ss 4AB, 60, 60CA, 60CC & 60CG
Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 & Part 2
Cases cited: Carter & Wilson [2023] FedCFamC1A 9
Fitzpatrick & Fitzpatrick [2005] FamCA 394
Garrido & Garrido [2024] FedCFamC2F 634
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Moose & Moose [2008] FamCAFC 108
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 75 Date of hearing: 9-10 May 2024 & 3 June 2024 Place: Hobart Counsel for the Applicant: Mr Trezise Solicitors for the Applicant: Mead Family Law Solicitor for the Respondent: Mr Saric, Jim Saric Law Counsel for the Independent Children's Lawyer: Mr McKenna The Independent Children's Lawyer: Ms Pagett, Pagett & Associates ORDERS
HBC 555 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COULSON
Applicant
AND: MR WAYFIELD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders concerning X, born in 2013, and Y, born in 2014, (collectively "the children") are discharged.
2.Subject to funding from Tasmania Legal Aid, the Independent Children's Lawyer's appointment is extended for at least a period of six months.
3.The proceedings are adjourned and listed for case management and possible further Interim Hearing on 14 November 2024 at 9:30AM, in person.
4.The Independent Children's Lawyer has liberty to apply to bring the proceedings back before the Court in respect of any issues regarding difficulty or compliance with these Orders.
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
Parental responsibility
5.The children live with Ms Coulson ("the Mother").
6.The Mother shall have parental responsibility for the children and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children subject to the terms of Order 7 of these Orders.
7.For the purposes of Order 6 of these Orders and exercising sole parental responsibility:
(a)The Mother must message Mr Wayfield ("the Father") by the Our Family Wizard app of any decisions that she intends to make that concern "major or long-term…
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CaseChat Overview and Summary
The court considered extensive evidence and submissions from both parties and the Independent Children's Lawyer. It found that while some allegations against Mr Wayfield were not established, it was undisputed that the children should primarily live with their mother. The court noted that the children had expressed a desire to spend time with their father, and the mother had been withholding them from doing so. Given this, the court issued interim orders allowing supervised contact between the children and their father, subject to certain conditions and requirements.
The court's detailed reasoning and findings led to comprehensive orders that addressed various aspects of the children's care and the parents' responsibilities. These included arrangements for the children to live primarily with their mother, specific requirements for Mr Wayfield to undergo mental health assessments and treatment, and obligations for both parents to participate in parenting and support programs. Additionally, the court set out detailed supervised time arrangements for the children to spend with their father, as well as strict restraints to protect the children from potential harm. The orders also included provisions for communication between the parents, changeover arrangements, and restrictions on their conduct towards each other and the children.
Orders
Orders of the court
HBC 555 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS COULSON
Applicant
AND:
MR WAYFIELD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1. All previous parenting orders concerning X, born in 2013, and Y, born in 2014, (collectively "the children") are discharged.
2. Subject to funding from Tasmania Legal Aid, the Independent Children's Lawyer's appointment is extended for at least a period of six months.
3. The proceedings are adjourned and listed for case management and possible further Interim Hearing on 14 November 2024 at 9:30AM, in person.
4. The Independent Children's Lawyer has liberty to apply to bring the proceedings back before the Court in respect of any issues regarding difficulty or compliance with these Orders.
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
Parental responsibility
5. The children live with Ms Coulson ("the Mother").
6. The Mother shall have parental responsibility for the children and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children subject to the terms of Order 7 of these Orders.
7. For the purposes of Order 6 of these Orders and exercising sole parental responsibility:
(a) The Mother must message Mr Wayfield ("the Father") by the Our Family Wizard app of any decisions that she intends to make that concern "major or long-term issues" for the children at least 28 days prior to those decisions being made;
(b) Within 14 days of the date of any message sent by the Mother by the Our Family Wizard app to the Father pursuant to Order 7(a) of these Orders, the Father may respond in no more than two Our Family Wizard messages, setting out his feedback in a polite and business-like manner, in respect of the notified major or long-term issue which has arisen; and
(c) The Mother upon receiving the Father's communication pursuant to Order 7(b) of these Orders, must acknowledge receipt and give genuine consideration to the Father's feedback but is not bound by it.
Responsibilities
8. The Father must:
(a) Within 14 days of the date of these Orders, obtain from his general practitioner ("GP") a referral to a psychiatrist to assess the Father and diagnose whether he has a psychiatric/psychological disorder or condition;
(b) Ensure that his GP provides the results of the assessment referred to in Order 8(a) to the Independent Children's Lawyer within 7 days of the GP receiving them; and
(c) Within 14 days of the date of these Orders, obtain a mental healthcare plan from his GP and undergo psychological treatment as soon as practicable and thereafter follow the reasonable direction and recommendations of the psychologist.
9. If the Father is diagnosed with a psychological or psychiatric disorder or condition, he must engage with and undertake treatment and management as recommended by the psychiatrist who diagnosed the disorder or condition.
10. If the Mother has not already completed the "Parenting Separately" program at H Centre, she must enrol in the next available course and within 7 days provide written confirmation of enrolment in the course to the Independent Children's Lawyer, complete the course and upon 7 days of the date of completion, provide written evidence of the same to the Independent Children's Lawyer.
11. The Father must enrol in the next available "Circle of Security" course and provide confirmation of his completion of that course to the Independent Children's Lawyer within 14 days of course completion.
12. Subject to eligibility, the Father enrol in the next available L Program conducted by H Centre and provide confirmation of his completion of that course to the Independent Children's Lawyer within 14 days of course completion.
13. Within 21 days of the date of these Orders, the Mother must ensure the children enrol and then attend counselling and supports as follows:
(a) X's attendance at D Organisation on such dates and at such times as provided by D Organisation; and
(b) Y's attendance at the Children and Young Persons Program ("CHYPP") on such dates and at such times as provided by CHYPP.
Spend time arrangements
14. Within 7 days of the date of these Orders, the parents do all acts and things and sign all documents necessary to complete enrolment at J Contact Service for supervised time between the children and the Father.
15. The Father will spend supervised time with the children at his expense, on such days and times and at such frequency as can be offered by J Contact Service, commencing at the earliest available date offered by J Contact Service and subject to availability, attend for at least 2 hours weekly for a period of 6 weeks.
16. After 6 weeks of the children spending time with the Father at J Contact Service, the children spend time with the Father on a two-week basis as follows:
(a) In Week One, on Sundays from 10:00am to 3:00pm; and
(b) In Week Two, on Wednesdays from after school, or 3:00pm on a non-school day, until 7:00pm.
AND THE COURT NOTES:
A. At the listing on 14 November 2024, conditional upon the Father complying with the requirements in Orders 8, 9, 11 & 12 of these Orders, the Court will entertain making further Interim spend time with Orders.
Changeover
17. For the purposes of the Father spending time with the children pursuant to Order 16 of these Orders, the changeover arrangements will be as follows:
(a) On school days or during usual school hours, at the children's school NOTING they currently attend M School;
(b) On non-school days or outside of usual school hours, outside the Suburb N Library in the proximity of the CCTV camera;
(c) The Father will collect the children at the commencement of time and return them at the end of time to the school or to the Suburb N Library on non-school days or at non-school hours; and
(d) The mother will be present for changeovers at the Suburb N Library and the parties are not to approach within 20m of one another.
Restraints
18. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the Father is restrained from:
(a) Being under the influence of illicit substances whilst spending time with the children or exposing the children to third parties under the influence of illicit substance;
(b) Exposing the children to drug paraphernalia; and
(c) Consuming or being under the influence of alcohol whilst the children are in his care.
19. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the parties and the children, the parties will at all times use civil and respectful language when communicating with the children and are hereby restrained from:
(a) Speaking critically, abusively, insultingly, belittlingly, negatively or rudely about the other party, or that party's partner and family to the children or within the children's hearing;
(b) Discussing parenting arrangements or parenting disputes, or these proceedings in the presence or hearing of the children; and
20. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the parties and the children, the parties are restrained from:
(a) Approaching within 20 metres of the other party; and
(b) Exposing the children or the other party to family violence as defined by s 4AB of the Family Law Act 1975 (Cth).
Authorities and communications
21. The Father has authority to receive information from the children's medical professionals and for that purpose this Order serves as authority as may be required from the Mother.
22. The Father has authority to receive information from the children's school, including but not limited to reports newsletters and school photographs and for that purpose this order serves as authority as may be required from the mother.
23. The Father is to provide a copy of these Orders, the Reasons for Judgment and Dr O’s report to his general practitioner and the psychologist to be consulted or engaged pursuant to these Orders.
24. The parents and the Independent Children's Lawyer have leave to provide a copy of these Orders to the children's school, J Contact Service and medical/allied health professionals.
25. The Mother and Father are to communicate only in respect of parenting issues and arrangements related to these Orders and must:
(a) Use the Our Family Wizard app except in the case of emergency;
(b) The Mother is to establish the Our Family Wizard app account within 7 days of the date of these Orders and invite the Father to join;
(c) The Father must join and accept the invitation for Our Family Wizard within 7 days of receiving the invitation; and
(d) Each party is to pay their own costs of obtaining the Our Family Wizard app.
26. In the case of emergency the parents can contact one another by phone AND FOR THIS ORDER, each parent is to keep the other informed of their preferred mobile telephone number, residential address and email address for use with the Our Family Wizard app.
THE COURT NOTES THAT:
B. Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the Orders for personal protection in Orders 18, 19 or 20 have been breached.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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