DALE & MADISON

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALE & MADISON

[2018] FCCA 2393

Catchwords:
FAMILY LAW – Parties largely in agreement and content to proceed by oral submissions only – ex tempore ruling on issues still outstanding.

Applicant:

MS DALE

Respondent:

MR MADISON

File Number:

DGC 3096 of 2016

Judgment of:

Judge Burchardt

Hearing date:

9 August 2018

Date of Last Submission:

10 August 2018

Delivered at:

Dandenong

Delivered on:

10 August 2018

REPRESENTION

The Applicant:

In person

Counsel for the Respondent:

Ms Elleray

Solicitors for the Respondent:

Bayside Solicitors

Counsel for the Independent Children’s Lawyer:	Mr Allen
Solicitors for the Independent Children’s Lawyer:	Peter Lynch

ORDERS

That all previous parenting Orders be and are hereby discharged save for paragraph 4(a) and (b) of the Orders dated 22 March 2017.
That the parents have equal shared parental responsibility for the child [X] born 2016 “the child”.
That the child live with the Father.
That the child spend time and communicate with the Mother as follows:
(a)From 11 am Saturday until 5 pm Sunday commencing 11 August 2018 and weekly thereafter;
(b)From 10 am Tuesdays until 4 pm Wednesdays commencing 13 November 2018 and weekly thereafter;
(c)Commencing February 2019 from 10 am Wednesdays until 4 pm Fridays and fortnightly thereafter to start on the Wednesday after the Mother’s time in order 4(d);
(d)From 10 am Fridays until 4 pm Sundays commencing February 2019 each fortnight on the first weekend the Mother’s step-child [A] is in the Mother’s home for the weekend;
(e)Upon the child turning 4 years old for four (4) days in three (3) night blocks during the third term of school holiday period at times to be agreed in writing and failing agreement from 10 am Monday 21 September 2020 until 4 pm Thursday 24 September 2020 until 4 pm Thursday 24 September 2020 and for the long summer holidays 2020/2021 at times to be agreed between the parents in writing but no more than four (4) three night blocks during the summer holidays;
(f)and for five days (4 nights) blocks on five (5) occasions in the first, second and third term school holidays in 2021 on days to be agreed between the parents in writing;
(g)Upon the child commencing Prep year (anticipated to be 2022) from the conclusion of school (or 3.30 pm Fridays) until the commencement of school on Tuesdays and fortnightly thereafter;
(h)Upon the child commencing Prep:
(i)For the first half of each of the first, second and third term school holidays commencing the day of the last day of school term at 10 am until 4 pm at a mid point during the holiday period;
(j)For half of the long summer school holidays December 2020/January 2023 on a week about basis until the child turns 8 years of age (2024) and thereafter as agreed between the parents in writing;
(k)For five (5) hours on the child’s birthday and [Y]’s birthday if a non school day and two hours on the child’s and [Y]’s birthdays if a school day at times to be agreed between the parents in writing.
(l)From 3 pm Christmas Eve until 12 noon Christmas Day in the even numbered years and alternate years thereafter;
(m)From 12 pm Christmas Day until 3 pm Boxing Day in odd numbered years and alternate years thereafter;
(n)That in the event the (football game) games fall on a weekend when [X] is not in the Mother’s care then the Mother be at liberty to take [X] to the game if the Mother intends going.
That the Mother be and is hereby retrained by injunction from residing with the maternal Grandmother and her partner Mr R for a period of 12 months from the making of these Orders.
That paragraph 4 of the Orders dated the 22 March 2017 remains in full force and effect NOTING THAT the Mother will provide to the Father within 14 days of these Orders written proof of her enrolment at Suburb A Family Life Children’s Contact Centre.
That changeovers not occurring at (eventually) the child’s kindergarten and/or school shall occur at the Suburb A Children’s Contact Centre and as a last resort the foyer at Suburb A Police Station being inside the Police Station until they commence changeover at Suburb A Children’s Contact Centre.
That in the event the parents are unable to reach consensus with respect to the long term care welfare and development issues pursuant to paragraph two (2) above they shall do all acts and things to undertake Mediation with either Relationships Australia or such other service provider to assist in the implementation of the dispute and said Mediation will be conducted at least three months prior to any decision needing to be made.
The Mother and Father shall immediately do all things and sign all documents necessary to undertake and participate and complete the Parenting Orders Program (POP) conducted by Family Life Suburb A and the Mother and Father shall provide Family Life with Ms M’s Family Report dated 1 May 2018 and a copy of these Orders.
On the Mother spending time with [X] during the school holidays for block periods under these Orders, the Mother’s fortnightly time be suspended and recommence after the holidays in the same sequence as if the holiday had not taken place.
The Mother and the Father be at liberty to authorize any kindergarten/school or child care facility the child attends to provide to the parents copies of the child’s school reports and any other reports that a parent with a child at the school would normally be expected to receive.
Subject to any contrary direction of the kindergarten/school/child care authorities the Mother and Father be at liberty to attend any events or activities that a parent with a child’s kindergarten/school or child care centre would normally be expected to attend.
The Mother and Father shall keep each other apprised of any serious illness or serious injury the child experiences when in their care including the name, professional address and phone number of any medical or allied health professional the child attends upon while in their care and to the extent necessary this Order authorizes the said medical professional to disclose to either parent information concerning the child’s attendance and treatment.
The Mother and Father are restrained by injunction from doing the following:
(a)Denigrating or criticizing the other parent, their friends or family in the presence or hearing of the child particularly at spend time changeover;
(b)Disclosing these proceedings or any other Court proceedings including possible criminal charges in the presence or hearing of the child particularly at spend time changeover;
(c)Allowing the child to become aware of the contents of any Court documents;
(d)Publishing on Facebook or any other social media issues concerning the child, these proceedings or any other Court proceedings involving the parents or the child;
(e)Acting in any manner towards each other or the child that would constitute family violence as defined by Section 4AB of the Family Law Act 1975;
(f)Encouraging any other person(s) to act in a manner prohibited by this Order;
(g)Directly exposing the child to cigarette smoke and or allowing the child to be in any enclosed space where cigarettes are being smoked;
That the Mother and Father shall keep each other apprised of their residential address and contact details (phone/email) and advise of any change within 7 days;
That unless otherwise mutually agreed by the Mother and Father in writing the child shall attend a kindergarten/child care centre and/or primary school in close proximity to the Father’s residence.
That unless otherwise mutually agreed by the Mother and Father in writing the Mother and Father shall reside in the Region 1 Suburbs of Melbourne.
The Mother and Father be at liberty to provide a copy of these Orders to:
(a)The child’s kindergarten/school or child care centre;
(b)Any medical professional or allied health professional the child attends upon;
(c)Victoria Police;
(d)Suburb A Family Life Contact Centre.
The Independent Children’s Lawyer be a liberty to provide a copy of these Orders and the Family Report of Ms M to Department of Health and Human Services (“DHHS”) if requested.
That to give to Order 9 herein the Mother within 21 days of this shall do all things necessary including if required personally attending to enrol at Family Life Suburb A Contact Centre to seek inclusion in the supervised changeover program conducted by the centre and if accepted into the program the Mother and Father shall equally share any costs associated with changeover and to assist the Mother and or Father shall provide the centre with a copy of this Order.
The Mother and Father shall immediately do all things necessary to download and utilize the “Smart Co-Parent App “Ultimate Co-Parenting Solutions” to assist in communicating and parenting [X].
The Order appointing the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Dale & Madison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3096 of 2016

MS DALE

Applicant

And

MR MADISON

Respondent

REASONS FOR JUDGMENT

This matter has a relatively lengthy history. It has given rise to florid counteraccusations between the parties, but to their credit the parties have now largely agreed the outcome. I note they are both going to attend a POPs program and I emphasise again how important that is to benefit them so that they can conduct themselves on an ongoing basis in a more mature child-focused way than has perhaps been the case in the past. Given the measure of agreement, I think it is best that I say less rather than more by way of comment.
Essentially the main part of this dispute is how fast we get to a ten/four regime. The Independent Children's Lawyer is in my view correct to submit through counsel that that is the nature of the dispute. Unsurprisingly the mother wishes to arrive at that point quicker and the father wants slower and the Independent Children's Lawyer is in between.
One of the primary points made by the father is that he has never had a weekend to himself with [X]. The Independent Children's Lawyer wants a regime whereby the father would obtain the whole of a weekend when time moves to fortnightly in February 2019. The mother wants the progression to four nights by 8 October 2018. There is also dispute about this first weekend. Both parties have indicated that they have something planned for Friday. The Independent Children's Lawyer, as I understand it, did not know what those events are. I accept that the father would have planned his weekend on the basis of the existing regime and it is reasonable that time start this weekend from 11 am, Saturday, till 5 pm, Sunday.
The mother and the Independent Children's Lawyer seek, as I said, weekly weekends until February 2019 on the part of the Independent Children's Lawyer. The mother’s transition to fortnightly would of course be far quicker. The father says all times on the weekends should be fortnightly as from now. It is important to remember that [X] is still very young. He was only born on 2016. There is plenty of time for weekends with the father in due course. I accept the Independent Children's Lawyer’s submission that time that [X] spends with [Y] is important and when we move to fortnightly the fortnight must be on the weekend when [X] will otherwise be with Ms Dale.
So far as time during the week is concerned, I accept the Independent Children's Lawyer’s submission, time needs to increase but in the past the mother has thus far only had daytime time. The mother’s time is simply too fast and the time to progress should be that proposed by the Independent Children's Lawyer.
So far as holidays are concerned, the half holidays that the mother seeks, and I can understand why, is once again too soon in the light of the history of the matter. In my view the Independent Children's Lawyer’s proposals are appropriate.
The father seeks that there be a further order that there be time as agreed in writing. In my view, that is undesirable. Normally it would be, but the interpersonal dynamic between the parties has been fraught and the notion that they are likely to agree in writing about things is somewhat far-fetched in the light of the history and is only likely to give rise to further arguments. The father seeks that the parties use the SmartCoparent app, and as I understand it, that is agreed and it should be incorporated into the minute.
The mother wants to take the child, [X], to games between (football games). I had some hesitation about that because a crowd of in excess of 50,000 people is going to be pretty noisy for a child who is just turning two. However, it is not opposed by the Independent Children's Lawyer and it is a fact of life that many very young children do go to the footy, so I will make the order that the mother seeks in that regard.
So far as changeover is concerned, it is vital that the changeovers take place at a contact centre rather than at a police station. I am going to direct the mother to enrol at the Suburb A children’s contact centre within 21 days. She must physically visit if she has to. The police station is the worst option for these parties. The costs should be shared equally and is likely to be minimal as they are both in receipt of benefits.
The Independent Children's Lawyer seeks an order that the mother continue to be prohibited from living with her own mother. He points to the fact, and I accept this, that the reports from the Department suggests that it is a dysfunctional household. But we cannot see the future. The mother is right to say this. If the mother seeks to live with the grandmother there will undoubtedly be court proceedings. I am going to make a restraint on her living with her mother for a period of 12 months. That is not out of order with her own aspirations, as I understand them.
The next matter, which was the final matter until we had an argument about order 10 this morning, is the question of prohibition on both parents from either smoking or permitting anyone else to smoke in the immediate vicinity of the child. The research about cigarette smoke is long done and the evidence is fully in. It is plainly utterly undesirable that anybody smoke or permit anyone else to smoke on the immediate vicinity of the child and an order to that effect should be made.
So far as orders 10 is concerned, the father seeks that mother notify him every day by text if she is going to attend. The mother opposes because in essence, she has got too much on her plate. Once again I am going to not make that order because it is a fertile ground for further disputation. These parties are both, as the report writer correctly said, highly competitive, and anything we can remove to enable the parties to just get on with it is, in my view, desirable. So I think that governs all the matters that were the subject of dispute.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:10 August 2018

[2018] FCCA 2393

10 August 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies