Darnley & Darnley
[2024] FedCFamC2F 1348
•25 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Darnley & Darnley [2024] FedCFamC2F 1348
File number(s): MLC 2681 of 2023 Judgment of: JUDGE STREET Date of judgment: 25 September 2024 Catchwords: FAMILY LAW – PARENTING – parenting orders made by consent – applicant has no substantial liquid assets – no order made in respect of the ICL’s costs against the applicant – respondent exempt from ICL’s costs due to legal aid representation Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 4 Date of hearing: 25 September 2024 Place: Sydney Counsel for the Applicant: Ms M Bateman Solicitor for the Applicant: Swifte Law Solicitor for the Respondent: Mr R Clack of Legal Aid NSW Counsel for the Independent Children’s Lawyer: Ms C Doosey Solicitor for the Independent Children’s Lawyer: Johnson Vardanega Lawyers ORDERS
MLC 2681 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DARNLEY
Applicant
AND: MS DARNLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
25 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1.That all previous parenting Orders shall be and are hereby discharged.
2.That, subject to Orders 3 and 4, the Mother have sole parental responsibility for decision making about major long-term issues in relation to the child X born in 2019.
3.That the parties have joint parental responsibility for decision making about the name of the child.
4.That the Mother will genuinely consult with the Father about any non-urgent major long-term issues in relation to the child as follows:
4.1 That the Mother must notify the Father in writing no later than fourteen (14) days prior to the Mother exercising sole parental responsibility for making decisions about non-urgent major long-term issues in relation to the child in accordance with Order 2;
4.2 That the Father must advise the Mother in writing of his views within seven (7) days of receiving notice from the Mother pursuant to Order 4.1;
4.3 The Mother will consider the Father’s response, if any; and
4.4 That Mother must notify the Father in writing within fourteen (14) days of the Mother exercising sole parental responsibility for making decisions about major long-term issues in relation to the child in accordance with Order 2.
5.That the child live with the Mother.
6.That the Mother be permitted to maintain the child’s primary residence in the Region B area.
7.That unless the Mother is relocating to a location that is closer to or is in Region C in Victoria, the Mother is restrained by injunction from relocating the child’s primary residence outside of the Region B, NSW/Greater Sydney area without first obtaining the written agreement of the Father.
8.That the child spend time with the Father as agreed between the parties in writing, but failing agreement as follows:
8.1On one occasion each School Term as agreed between the parties in writing, but failing agreement from 12.00pm on Saturday until 12.00pm on Sunday on the fifth weekend of the School Term.
8.2During New South Wales Gazetted School Holiday periods as follows:
8.2.1In the Term 3, 2024 that the child spend time with the Father for a period of three (3) days from 12.00pm on the first Saturday immediately following the conclusion of School Term until 12.00pm on Monday;
8.2.2In the Term 4, 2024, that the child spend time with the Father for a period of five (5) days from 12.00pm on 23 December 2024 until 12.00pm on 27 December 2024;
8.2.3In the Term 1 and 2 in 2025, that the child spend time with the Father for a period of five (5) days from 12.00pm on the first Sunday following the conclusion of School Term until 12.00pm on Thursday;
8.2.4In the Term 3 in 2025, that the child spend time with the Father for a period of six (6) days from 12.00pm on the first Sunday following the conclusion of School Term until 12.00pm on Friday;
8.2.5From the commencement of Term 4, 2025 and continuing thereafter, as follows:
8.2.5.1In the Term 4 School Holiday periods as follows:
8.2.5.1.1In school holiday periods commencing in even numbered years, for a period of seven (7) days from 12.00pm on 23 December until 12.00pm on 29 December; and
8.2.5.1.2In school holiday periods commencing in odd numbered years, for a period of seven (7) days from 12.00pm on 4 January until 12.00pm on 10 January.
8.2.5.2In the Term 1, and 3 School Holiday periods for a period of seven (7) days from 12.00pm on the first Saturday following the conclusion of School Term until 12.00pm on the following Saturday; and
8.2.5.3In the Term 2 School Holiday periods for a period of seven (7) days from 12.00pm on the first Sunday following the conclusion of School Term until 12.00pm on the following Sunday.
8.3For the purposes of Easter, if the child is not already spending time with the Father pursuant to Order 8.1 and 8.2 in even numbered years, the child shall spend additional time with the Father from 12.00pm on Good Friday until 12.00pm Easter Monday.
9.That the children’s time with the Father be suspended so that the child may spend time with the Mother.
9.1For the purposes of Mother’s Day, from 12.00pm on Saturday until 12.00pm on Sunday;
9.2For the purposes of Easter, from 12.00pm on Good Friday until 12.00pm Easter Monday in odd numbered years;
10.That for the purposes of Order 8.1., and unless otherwise agreed between the parties in writing, such time between the child and the Father shall occur in Region B, New South Wales.
11.That for the purposes of facilitating changeover, unless otherwise agreed in writing between the parties, changeovers shall occur between the Mother and/or the Maternal Grandfather and the Father and/or the Paternal Grandmother as follows:
11.1For time spent pursuant to Order 8.1, changeover shall occur at Town D McDonalds; and
11.2For time spent pursuant to Order 8.2 and 8.3 changeover shall occur at McDonalds in Town E, NSW.
12.That the child communicate with the Father by Facetime as agreed between the parties in writing, but failing agreement as follows:
12.1Each Monday and Wednesday between 5.00pm and 6.00pm;
12.2That in the event that the child is not already spending time with Father, on special occasions as follows:
12.2.1On the child’s birthday between 5.00pm and 6.00pm;
12.2.2On Christmas Day between 9.00am and 10.00am;
12.2.3On Easter Sunday between 9.00am and 10.00am; and
12.2.4On Father’s Day between 9.00am and 10.00am;
12.3Where the Father will call the Mother’s personal mobile phone and where the Mother will answer the call and provide the phone to the child.
13.That in addition to Order 12, in the event that the child expresses a wish to the Mother to speak with the Father, the Mother will facilitate the child telephoning the Father as appropriate
14.That in the event that the child is not already spending time with the Mother, that the child communicate with the Mother by Facetime as agreed between the parties in writing, but failing agreement as follows:
14.1Each Monday and Wednesday between 5.00pm and 6.00pm;
14.2Between 9.00am until 10.00am on occasions as follows:
14.2.1On the child’s birthday;
14.2.2On Christmas Day;
14.2.3On Easter Sunday; and
14.3Where the Mother will call the Father’s personal mobile phone and where the Father will answer the call and provide the phone to the child, with the call placed on loud speaker.
15.That in addition to Order 14, in the event that the child expresses a wish to the Father to speak with the Mother, the Father will facilitate the child telephoning the Mother as appropriate.
16.That the Father is permitted to send the child letters, cards, photographs and/or gifts on the child’s birthday and on other special occasions via the Mother’s residential address and the Mother is to ensure that any letters, cards, photographs and/or gifts received from the Father by post are provided to the child within 7 days of receipt.
17.Except as otherwise provided for by these Orders or agreed between the parties in writing, the parties shall communicate all non-urgent issues relating to the care, welfare and development of the child via SMS Text Message, except in cases of emergencies when communication shall be via telephone.
18.That in March 2025, September 2025, March 2026 and September 2026, the Father undergo hair testing for the purpose of testing drugs of abuse at a laboratory either directly accredited by the National Association of Testing Authorities (NATA) to conduct such testing in accordance with the current standard for the collection and detection of drugs of abuse (ISO/IEC 17025:2017 or ISO 15189:2012) (‘NATA accredited laboratory’) or, at a laboratory that sends hair samples to a NATA accredited laboratory for analysis (‘approved laboratory’). To give effect to this Order:
18.1The Father is required to maintain a head hair at a length of not less than 4 centimetres. Neither head hair or body hair is to be cut, bleached or dyed between the date of these Orders and the time of collection of hair and an injunction to that effect is immediately effected against the Father;
18.2By no later than the last day of the preceding month, the Father is required to make an appointment with the NATA accredited laboratory or approved laboratory for the purpose of providing a hair sample for hair drug and/or testing purposes, and that this appointment must be booked for a date within the first two weeks of that month;
18.3Each parent is at liberty to provide the NATA accredited laboratory or approved laboratory with a copy of these Orders;
18.4The Father is to attend the NATA accredited laboratory or approved laboratory and submit to the supervised collection of a hair sample win accordance with the appointment booked pursuant to Order 18.2 to undertake hair collection for drug testing purposes;
18.5The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising the NATA accredited laboratory or approved laboratory to provide the results of each test to both parties, upon receipt of such test results;
18.6The hair drug test shall screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;
18.7The cost of the hair drug tests are to be met by the Father;
18.8The Father is to provide the Mother with a copy of his hair drug test results within 48 hours of receipt.
19.In the event that:
19.1A hair drug test of the Father detects a substance referred to in these Orders other than a lawfully obtained current prescription or over the counter medication; or
19.2The Father fails to provide a hair sample in accordance with these Orders within the time frame provided in these Orders; or
19.3The Father’s hair is not maintained as referred to in Order 18.1;
Then Order 8 shall be suspended, until such time that the Father provides one compliant negative Hair Test.
20.That pursuant to Section 68B of the Family Law Act 1975, on a without admissions basis, each party be restrained by injunction from:
20.1Asking the child personal questions about the other party or their living arrangements;
20.2Exposing the child to excessive conflict or violent behaviour (including physical and verbal abuse) during those periods that the child is living with/spending time with them; and
20.3Physically disciplining or chastising the child in any unreasonable manner or permitting anyone else to do so;
20.4Consuming or being affected by alcohol beyond the legal blood alcohol limit (0.05) in the presence of the child, during any periods that his is spending time with the child or in the period 24 hours prior to spending time with the child; and
20.5Taking, consuming or being in any way affected by illicit drugs or substances in the presence of the child, during any periods that they are spending time with the child or in the period 24 hours prior to spending time with the child.
21.That pursuant to Section 68B of the Family Law Act 1975 (Cth), the Father be restrained by injunction from leaving the child in the sole care of the Father’s partner, Ms F until the child turns 10 years old.
22.That the parties are to keep each other informed of their current mobile telephone contact numbers, email addresses and residential address and will notify the other party of any change to those details within 48 hours of such change occurring.
23.That each party will immediately notify the other in the event of an emergency involving the child including, but not limited to, the child suffering a serious illness or injury or being hospitalised while living with or spending time with them.
24.That each party will inform the other as soon as is reasonably practicable of any significant medical problems, illness or injury suffered by the child while living with or spending time with them.
25.That the Mother will inform the Father as soon as is reasonably practicable of:-
25.1The full particulars of any doctor, dentist, medical practitioner, allied health, or therapeutic or health service provider attended upon by the child;
25.2Any specialist medical appointment that the child is due to attend and the full particulars of that specialist medical practitioner;
25.3Any occasion that the child is scheduled to be hospitalised; and
25.4Any medication that has been prescribed for the child that needs to be administered during any periods that the child spends time with the Father.
26.That each parent shall do all acts and things and execute all documents necessary to authorise any school at which the child attends or any medical practitioner upon whom the child attends to provide all requested information in respect to the child to the other parent and to discuss all issues relating to the well-being of the child with the other parent.
27.That each parent shall do all things and sign all documents to authorise and direct any school attended by the child to discuss with each of the parents the child's school attendance and progress, furnish reports, photos (at the requesting party’s costs) and copies of correspondence, newsletters or other materials produced by the school and distributed to parents relating to the child.
28.That during the time that the child is in the presence or hearing range of the parties, the parties shall:
28.1Speak of the other party respectfully; and
28.2Not denigrate or insult the other party and use their best endeavours to ensure that others do not denigrate or insult the other party.
29.That following the child’s tenth birthday, the parties shall apply for a passport for the child as follows:
29.1The Father is to provide the Mother with signed passport documents within 7 days of the Mother’s request to do so to allow passports to be applied for and issued for the child;
29.2The Father is to provide the Mother with signed passport documents within 7 days of the Mother’s request to do so to allow renewed passports to be issued for the child;
29.3That the parties are equally responsible for the cost of new or renewed passports for the child;
29.4Passports and passport application forms are to be sent between the Mother and Father via registered post;
29.5Where the Father fails or refuses to comply with Orders 29.1 and 29.2, the requirement for the Father’s consent will be dispensed with.
29.6That the Mother will hold the child’s passports, excepted as provided for in Order 30.3.
30.That pursuant to section 65Y of the Family Law Act 1975 either parent may take the child outside of Australia for holidays to countries which have ratified the Hague Convention provided that:
30.1Such time will be for a period as agreed in writing, but failing agreement as follows:
30.1.1For not more 28 consecutive days; and
30.1.2With such time to occur during school holiday periods.
30.2The travelling parent will give the other parent as much notification as possible of their intention to take the child out of Australia and in any event will give not less than 28 days written notice of such intention.
30.3That in the event that the Father is travelling with the child:
30.3.1The Mother shall provide the Father with the child’s passport within 7 days of request from the Father.
30.3.2The Father shall return the child’s passports within 7 days of the Father’s return.
30.4The travelling parent will furnish to the other parent a full and accurate itinerary to include the departure and return dates, country or countries the child will be travelling to, the dates on which the child will arrive and depart each country, the address of hotels or places of residence the child will be staying at within each country or countries.
31.The travelling parent will:
31.1Provide a telephone number at which the travelling parent and/or the child can be contacted in each country, or;
31.2Will activate global roaming on their mobile for the duration of the trip, or;
31.3Will purchase a local SIM card;
so as to provide a communication channel with the child via phone, text or instant messaging.
32.The travelling parent will do all things necessary to facilitate the child being able to communicate with the non-travelling parent at times as reasonably requested by the child or either of them, or at least once a week whilst the child is overseas.
THE COURT ORDERS THAT:
33.No order in respect of the ICL’s costs against the applicant father.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
The ICL in these proceedings, which have been resolved by the making of parenting consent orders on day 3, has sought for an order for costs against the applicant father (“the father”). The respondent mother (“the respondent”) is exempt from an order in respect of the ICL’s costs because of her Legal Aid representation.
The Court has been informed and accepts the submissions from Ms Bateman, counsel for the father, that he does not have substantial liquid assets. The Court has taken into account the factors in s 117(2A) of the Family Law Act 1975 (Cth). In the circumstance of this case, the Court accepts that the father is financially stretched. The amount being sought by the ICL, properly and fairly, is half the costs incurred, in the sum of $6,919.35.
Having considered the factors in s 117 (2A), and in particular the financial circumstances of the father, the Court is not persuaded that this is an appropriate matter in which a costs order, in respect of the ICL’s costs, should be made against the father. The Court is of the opinion that there are not circumstances that justify the Court in making an order for the father to pay the costs of the ICL.
It is for these reasons the Court declined to make an order for the ICL’s costs.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street. Associate:
Dated: 30 September 2024
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