FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUBBIN & CUTLER (No.2) | [2017] FCCA 915 |
| Catchwords: FAMILY LAW – Parenting dispute – long-running litigation – parents unable to communicate effectively – the Mother makes allegations about the Father having sexually assaulted her during the relationship – Mother says children repeatedly tell her that they have been molested by the Father – all allegations have been investigated by authorities and nothing has been established – Father and ICL seek a change of residence of the children to reside with the Father while the Father and the ICL acknowledge that such a course will not fix “the problem” – the subject children have many siblings in Mother’s household – importance of sibling relationships not addressed by Father or ICL – Family Consultant did not support a change in residence – family therapy ordered for both parents as well as regular mediated meeting to discuss parenting matters with reporting requirements to Court also ordered in relation to these mediated meetings – no change in residence – equal shared parental responsibility. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3)(a), (b), (c), (ca), (d), (e), (f), (g), (h), (i), 65DAA, 68LA |
| Cases cited: AON Risk Services Australia and Australian National University (2009) 239 CLR 175 Browne v Dunn (1893) 6 R 67 Cubbin v Almond [2014] FCCA 3200 |
| Applicant: | MR CUBBIN |
| Respondent: | MS CUTLER |
| File Number: | CAC 2061 of 2010 |
| Judgment of: | Judge Neville |
| Hearing dates: | 3 & 4 December 2015, 4 May 2016, 15 & 16 September 2016 |
| Date of Last Submission: | 16 September 2016 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Givney |
| Solicitors for the Applicant: | Walsh & Blair, Wagga Wagga |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | |
| Counsel for the Independent Children’s Lawyer: | Mr N Jackson |
| Solicitors for the Independent Children’s Lawyer: | Antoinette Campbell Legal, Bowral |
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the children, X (born: (omitted) 2009) and Y (born: (omitted) 2010) (“the children”).
The children are to live with the Mother.
The children spend time with the Father 5 nights per fortnight.
The children shall spend half of each school holidays with each parent.
The Mother be restrained from relocating to the residence known as the “Property I property” located at Property I.
Unless agreed in writing between the parties, the Mother be further restrained from relocating the children’s residence from (omitted), NSW absent any…
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- AGLC
- Cubbin and Cutler (No.2) [2017] FCCA 915
- Case
- [2017] FCCA 915
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate orders for the children's welfare, specifically addressing issues of equal shared parental responsibility, the children's primary residence, the father's time with the children, and the mother's ability to relocate. Additionally, the court considered the need for orders restraining negative commentary about a parent in the children's presence and prohibiting discussion of court proceedings with the children. The court also had to decide on the necessity of ongoing therapeutic and consultative interventions for the parents.
Judge Neville ordered that the parties have equal shared parental responsibility for the children, who are to live with the mother. The father was granted time with the children for five nights per fortnight, and school holidays were to be divided equally between the parents. Crucially, the mother was restrained from relocating to a specific property and from moving the children's residence from their current location in New South Wales without further court order. The court also imposed orders restraining both parents from speaking negatively about each other to or in front of the children, and from discussing court proceedings with them. To foster improved communication and co-parenting, the parties were ordered to attend monthly family therapy for 12 months and to engage in monthly mediated consultations regarding parenting issues. The Independent Children's Lawyer was discharged. The court also noted an existing order regarding the child Y's name.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the children, X (born: (omitted) 2009) and Y (born: (omitted) 2010) (“the children”).
2.
The children are to live with the Mother.
3.
The children spend time with the Father 5 nights per fortnight.
4.
The children shall spend half of each school holidays with each parent.
5.
The Mother be restrained from relocating to the residence known as the “Property I property” located at Property I.
6.
Unless agreed in writing between the parties, the Mother be further restrained from relocating the children’s residence from (omitted), NSW absent any further Order of the Court.
7.
Both parents are restrained from saying unkind or unpleasant things about the other parent to any of the children, in their presence, or allowing any other person to do so.
8.
Both parents are restrained from discussing these Court proceedings with any of the children, or doing so in their presence, or allowing any other person to do so.
9.
The parties are to attend Family Therapy once a month for the next 12 months after the date of these Orders.
10.
The parties are to institute a regime of mediated consultation once a month, to discuss parenting issues in relation to the children.
11.
The Independent Children’s Lawyer be discharged.
THE COURT NOTES THAT:
(A) The Court made Orders on 30 May 2012 for the child Y’s name to be Y, which remains in effect. Further, the child is to be called only by the name “Y” (or appropriate derivative thereof), which course the Father has acknowledged he will do.
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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