COVE & WHITLEY

[2021] FamCA 275

FAMILY COURT OF AUSTRALIA

COVE & WHITLEY [2021] FamCA 275

FAMILY LAW – CHILDREN – final consent orders – where the orders provide for the child to live with the mother and spend increasing time with the father – where the orders are in the best interests of the child – orders made by consent as agreed between the parties.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Cove

RESPONDENT: Ms Whitley

INDEPENDENT CHILDREN’S LAWYER: Taft Lawyers

FILE NUMBER: MLC 4369 of 2017

DATE DELIVERED: 1 March 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 1 March 2021

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Traficante, RT Legal

SOLICITOR FOR THE RESPONDENT:

Ms Maud, Romer Maud Family Lawyers

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAYWER:

Mr Taghdir, Taft Lawyers

Orders

BY CONSENT IT IS ORDERED

1. That the Mother shall have sole parental responsibility for the child X born … 2014, on the condition that the Mother:

   (a)Notify the Father in writing (including text or email), with sufficient notice, of any proposed decision, and seek his views;

   (b)Consider the Father’s views, with the Father to provide those views in a timely manner;

   (c)        Notify the Father in writing of her decision promptly.

2. That X shall live with the Mother.

3. That the Father shall spend time and communicate with X as follows, from the date of these orders until 1 August 2022 (“the progression of time”):

   (a)        From the date of these orders until 1 August 2021:

   (i)each alternate weekend, on Saturday and Sunday, from 9:00am until 5:00pm each day, and on the weekend of 24 April 2021 specifically, from 9:00am Saturday 24 April 2021 to 5:00pm Sunday 25 April 2021 (one overnight);

   (ii)during school terms, in the intervening week, from 3:00pm or the conclusion of school until 6:30pm on Wednesday;

   (iii)for Easter in 2021, from 10:00am until 8:00pm on Easter Sunday;

   (iv)on X’s Birthday (a Wednesday in 2021), from 3:00pm or the conclusion of school until 6:30pm;

   (v)on the Father’s Birthday (a Monday in 2021), from 3:00pm or the conclusion of school until 6:30pm;

   (vi)by Facetime (or video communication by other electronic means) at 3:30pm each Thursday;

   (vii)by Facetime (or video communication by other electronic means, at all reasonable times requested by X;

   (viii)as otherwise agreed between the parties in writing

   (b)       From 1 August 2021 until 1 February 2022:

   (i)Each alternate weekend from 9:00am Saturday to 5:00pm Sunday;

   (ii)In the intervening week, from 3:00pm or the conclusion of school until 6:30pm on Wednesday;

   (iii)For Christmas in 2021, from midday on Christmas Day until midday on Boxing Day;

   (iv)On Father’s Day, from 9:00am until 6:00pm;

   (v)by Facetime (or video communication by other electronic means) at 3:30pm each Thursday;

   (vi)by Facetime (or video communication by other electronic means), at all reasonable times requested by X;

   (vii)as otherwise agreed between the parties in writing.

   (c)       From 1 February 2022 to 1 August 2022;

   (i)Each alternate weekend from 3:00pm or the conclusion of school on Friday until 5:00pm Sunday;

   (ii)In the intervening week, from 3:00pm or the conclusion of school until 6:30pm on Wednesday;

   (iii)For Easter in 2022, from 10:00am until 8:00pm on Easter Monday;

   (iv)On the Father’s Birthday (a Tuesday), from 3:00pm or the conclusion of school until 6:30pm;

   (v)by Facetime (or video communication by other electronic means) at 3:30pm each Thursday;

   (vi)by Facetime (or video communication by other electronic means, at all reasonable times requested by X;

   (vii)as otherwise agreed between the parties in writing.

4. That from 1 August 2022, the Father shall spend time and communicate with X as follows:

   (a)       During school terms:

   (i)Each alternate weekend from 3:00pm or the conclusion of school on Friday to 5:00pm Sunday;

   (ii)In the intervening week, from 3:00pm or the conclusion of school on Wednesday, to 9:00am or the commencement of school on Thursday.

   (b)       During school term holidays:

   (i)For a block of five nights in the Term 3, 2022 and Term 1, 2023 school holidays as agreed, and in default of agreement then from 10:00am on the first Saturday of the holidays until 5:00pm on the first Thursday of the holidays;

   (ii)For half of all school term holiday periods commencing in the Term 2, 2023 holidays as agreed, and in default of agreement from 10:00am on the first Saturday until 10:00am on the middle Saturday;

   (c)       During summer school holidays;

   (i)i For three blocks of five nights in the summer 2022/23 holidays as agreed, and in default of agreement then:

   ·    from 5:00pm on Tuesday 27 December to 5:00pm on 1 January 2023;

   ·    from 5:00pm Friday 6 January to 5:00pm 11 January 2023, and

   ·    from 5:00pm on Thursday 18 January to 5:00pm on 23 January 2023;

   (ii)Thereafter, for half of all summer school holidays as agreed, and in default of agreement, for the first half in even years and the second half in odd years.

   (d)       For special occasions as follows:

   (i)For Christmas in 2022 and each alternate year thereafter, from 9:00am until 6:00pm on Christmas Eve,

   (ii)For Christmas in 2023 and each alternate year thereafter, from 6:00pm Christmas Eve to midday Boxing Day;

   (iii)For Easter in 2023 and each alternate year thereafter, from 10:00am to 8:00pm on Easter Sunday;

   (iv)For Easter in 2024 and each alternate year thereafter, from 10:00am to 8:00pm on Easter Monday.

   (v)On X’s Birthday in 2023 and each alternate year thereafter, from the conclusion of school to 7:30pm if a school day, and from 9:00am to 3:00pm if a non-school day;

   (vi)On Father’s Day each year from 9:00am to 6:00pm;

   (vii)On the Father’s Birthday each year, from the conclusion of school to 6:30pm if a school day, and from 9:00am to 3:00pm if a non-school day.

   (e)       Other:

   (i)by Facetime (or video communication by other electronic means, at all reasonable times requested by X;

   (ii)as otherwise agreed between the parties in writing.

5. That the Father’s time with X be suspended as follows:

   (a)From midday on Christmas Eve to midday on Christmas Day in 2021;

   (b)From 6:00pm on Christmas Eve to midday on Boxing Day in 2022 and each alternate year thereafter;

   (c)From 9:00am to 6:00pm on Christmas Eve in 2023 and each alternate year thereafter;

   (d)For Easter in 2021 and each alternate year thereafter, from 10:00am to 8:00pm on Easter Monday;

   (e)for Easter in 2022 and each alternate year thereafter, from 10:00am to 8:00pm on Easter Sunday;

   (f)on X’s birthday in 2022 and each alternate year thereafter, from the conclusion of school to 6:30pm if a school day, and from 9:00am to 3:00pm if a non-school day;

   (g)on the Mother’s birthday each year, from the conclusion of school to 6:30pm if a school day, and from 9:00am to 3:00pm if a non-school day;

   (h)on Mother’s Day each year, from 9:00am to 6:00pm; and

   (i)as otherwise agreed between the parties in writing.

6. That all changeovers which do not occur at X’s school shall occur at the front gate of the Father’s residence at the commencement of time, and the front gate of the Mother’s residence at the conclusion of time, and in the absence of the paternal grandmother.

7. That the Father is permitted to allow the paternal grandmother to be in attendance during his time on the first Saturday of each month only, and on Christmas 2021 from midday until Boxing day; until 1 August 2022, after which time this order shall cease to apply.

8. That the Father shall be in substantial attendance during all time the paternal grandmother spends with X; until August 2022, after which time this order cease to apply.

9. That the Mother shall sign all consents to enable X’s school to provide to the Father, at his own expense, copies of all school reports, photo order forms, newsletters and other like documentation, as well as access to the school Compass platform.

10. That the Father be permitted to attend all school functions (save for parent teacher interviews) to which parents are ordinarily invited, subject to any school policy to the contrary, on the condition that the Father provides the Mother with at least 14 days’ notice in writing (including text) of his intention to attend any such events:

    AND IT IS NOTED that X’s school only provide one face-to-face parent teacher interview each term, and it is in X’s best interest that the Mother, being his primary carer and the residential parent, attends those interviews. X’s school offer secondary phone appointments for non-residential parents.

11. That the Father be restrained by injunction from consuming any illicit substances or excess alcohol (>.05 blood alcohol concentration) while the child is in his care.

12. That the Father remain engaged with an Alcohol and Other Drug (AOD) counsellor or psychologist, or both, on a regular and consistent basis until 2022, or as recommended by the counsellor.

13. That the Mother be permitted to request up to a maximum of three supervised hair follicle tests from the Father, in the 18 months after these orders are made, and to facilitate same:

    (a)The Mother shall text the Father advising that she is making a request pursuant to this order;

    (b)The Father shall attend the test within 14 days of the request, and shall send a receipt or chain of custody form to the Mother after his test, to prove he has attended;

    (c)The Father shall provide the Mother with a copy of the test results immediately upon receipt;

    (d)The Mother shall be at liberty to contact the testing centre to enquire about the Father’s testing and results;

    (e)The Father shall be responsible for all costs;

    (f)This screening shall be for illicit substances only.

14. If the Father’s test pursuant to paragraph 13 herein is positive for any illicit substances, the Father’s time with X shall revert to supervision for up to four hours a fortnight.

15. If the Father’s tests pursuant to paragraph 13 herein are negative for all illicit substances, any ongoing requests by Ms Whitley are to be at her own expense and not to exceed one request in any 12-month period. The operation of this Order expires at 11.59pm on 31st December 2024.

16. That the parents, their servants and / or agents shall:

    (a)Keep the other informed of their current contact details, including telephone number and email address, at all times;

    (b)telephone the other upon the happening of any of the following:

    (i)X becoming seriously ill;

    (ii)X being hospitalised; or

    (iii)X becoming involved in an accident requiring medical attention.

    (c)Be restrained by injunction from speaking negatively about the other parent, or any member of their family or household in the presence or hearing of X, and from permitting any other person to do so;

    (d)Be restrained by injunction from questioning X about the other parent, and from permitting any other person to do so;

    (e)Be restrained by injunction from discussing the court orders, litigation or any parenting disagreements in the presence or hearing of X;

    (f)Be at liberty to provide a copy of these orders to X’s school.

17. That the Mother keep the Father advised of all medical practitioners and allied health professionals upon whom X may attend from time to time, and the Father shall be at liberty to obtain information about X’s health and wellbeing directly from those practitioners.

18. That, within 21 days of these orders, the parents shall sign and submit all documents and authorisations required, to change the name of the child X Cove born … 2014 to X Whitley-Cove with the Office of Births, Deaths and Marriages AND this order shall suffice as authority for them to do so.

19. That both parents refrain from moving to any location that would make it significantly more difficult for the Father to spend time with X pursuant to these orders, other than with the written consent of the other parent.

20. That in the event of any dispute as to the interpretation of these orders, the parties shall first attend family dispute resolution (FDR), in the event FDR is deemed appropriate.

21. That all previous parenting orders be discharged.

22. That the final hearing listed to commence on 7th June 2021 be vacated.

23. That the Order for an Independent Children’s Lawyer be discharged.

24. That all applications removed from the list of cases pending determination.

25. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cove & Whitley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC4369 of 2017

Mr Cove

Applicant

And

Ms Whitley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon the parties’ competing parenting applications in relation to the child, X, who was born in 2014 and is aged six years. 

2. The proceedings commenced in 2017 and have a long history before this Court.  Serious allegations have been raised by the mother as to the father’s conduct which she says have impacted upon the child.  Those allegations include allegations of family violence, mental health issues, anger management issues, and also allegations as to the father’s abuse of illicit substances. 

3. The parties have had the benefit of a number of expert reports in relation to these matters. The father seemingly has taken on board the observations and recommendations of those experts.  He has engaged in counselling and treatment in relation to issues of family violence; he has sought counselling in relation to his mental health issues and in particular, his anger management. 

4. The father has also sought assistance in relation to his abuse of illicit substances.  Pursuant to Court orders, he has submitted to drug testing over an extended period of time and has produced, in recent times, a series of clean drug tests. 

5. It is against that background that there has been opportunity for him to spend increased time with X. 

6. What is now proposed, following the parties’ engagement in family dispute resolution, is a staged gradual increase in the father’s time with X such that ultimately he will be able to spend unsupervised time with him overnight during both weekdays and over the holiday periods. 

7. The proposal is that the mother will have sole parental responsibility for X but that she will ensure that the father has notice of any proposed decisions she intends to make with respect to his long term care, welfare and development.  She will also seek the father’s views in relation to such decisions before they are made. 

8. The proposed orders ensure that X will continue to live with the mother. 

9. As I have noted, the father will commence spending a gradually increasing amount of time with X; overnight time with his father will commence in April of this year.  The incremental increases in X’s time with the father will culminate in X spending time and communicating with his father, as from August 2022, on alternate weekends from Friday after school to Sunday evening, with overnight time in the alternate week from after school Wednesday to Thursday morning. X will also spend block periods of time with the father during the holiday periods.

10. The orders also make provision for X to spend special occasions with his father, including provision for time at Christmas, Easter, Father’s Day, and birthdays.

11. The orders also incorporate a number of safeguards.  Central to the dispute was the concerns around the father’s drug use.  These orders make provision for ongoing drug testing for another 18 months to ensure that the father remains drug-free.  This is essential to ensure that X is safeguarded from the risk of harm. 

12. The orders also make provision for the father to be provided with information regarding X’s health and wellbeing, and to ensure that he has information regarding X’s progress at school.

13. In determining parenting issues, the Court must be satisfied that the proposed orders are in the child’s best interests (s. 60CA of the Family Law Act 1975 (Cth)).  The determination as to what is in the child’s best interests is made having regard to the matters set out in s 60CC of the Act.  The two primary considerations are:

    ·     to ensure that a child has the opportunity of a meaningful relationship with his parents; and

    ·    to ensure that the child is protected from the risk of physical or psychological harm from being exposed to abuse, neglect or family violence.

14. I am satisfied that the proposed orders address both of those primary considerations.  These orders will ensure that X has the opportunity of a meaningful relationship with both of his parents.  He will continue to live with his mother and will have the opportunity of significant and substantial time with his father. 

15. As noted earlier, the orders also ensure that X is protected from the risk of harm, particularly in relation to the father’s history of use of illicit substances. 

16. Accordingly, I am satisfied that the orders are appropriate and in X’s best interests.   

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 March 2021.

Associate: 

Date:  4 May 2021