FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEACON & CASTLE | [2013] FCCA 691 |
| Catchwords: FAMILY LAW – Practice and Procedure – rules of evidence. |
| Legislation: Evidence Act 1995, ss.69, 135, 136, 140 |
| Rice & Asplund (1979) FLC 90-725 Mabo v Queensland [1992] HCA 23 |
| Applicant: | MS DEACON |
| Respondent: | MR CASTLE |
| File Number: | (P)SYC 5348 of 2008 |
| Judgment of: | Judge Harman |
| Hearing dates: | 11, 12, 13, 14, 17 and 18 June 2013 |
| Date of Last Submission: | 18 June 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 4 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | Watts Mccray Lawyers |
| Counsel for the Respondent: | Ms Conte-Mills |
| Solicitors for the Respondent: | Veritas Legal |
| Counsel for the Independent Children’s Lawyer: | Ms Hafey |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
That all previous parenting orders with respect to the children of the relationship X born (omitted) 2002 and Y born (omitted) 2003 shall be and are hereby discharged.
That the mother, Ms Deacon shall have sole parental responsibility for X and Y.
X and Y shall live with their mother.
The Independent Children’s Lawyer and a Family Consultant are requested to immediately confer with X and Y and explain to them the orders made by me today and, in the case of the Family Consultant, to do all things within their power to assist and facilitate the children’s departure from the child minding section…
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- AGLC
- DEACON & CASTLE [2013] FCCA 691
- Case
- [2013] FCCA 691
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the determination of primary care for the children, the allocation of parental responsibility, and the establishment of a contact regime for the non-resident parent. The court also considered the rules of evidence in relation to the disclosure of certain reports to counsellors.
The court ordered that the mother, Ms Deacon, have sole parental responsibility for X and Y, and that the children live with her. Previous parenting orders were discharged. The father, Mr Castle, was subject to significant interim and ongoing restrictions on contact, including a prohibition on attending at or being within 200 meters of the mother's home or the children's school. A detailed contact schedule was established for Mr Castle, commencing after an initial period of restraint, and included provisions for telephone contact. The court also made orders regarding the parents' obligations to keep each other informed of addresses and to notify of emergencies involving the children, and restrained both parents from discussing the proceedings with the children. The court further ordered that the mother could provide specific reports to any counsellor or family therapist engaged by her.
Orders
Orders of the court
1.
That all previous parenting orders with respect to the children of the relationship X born (omitted) 2002 and Y born (omitted) 2003 shall be and are hereby discharged.
2.
That the mother, Ms Deacon shall have sole parental responsibility for X and Y.
3.
X and Y shall live with their mother.
4.
The Independent Children’s Lawyer and a Family Consultant are requested to immediately confer with X and Y and explain to them the orders made by me today and, in the case of the Family Consultant, to do all things within their power to assist and facilitate the children’s departure from the child minding section of this Court with their mother.
5.
Mr Castle shall, forthwith upon these orders being pronounced and judgment delivered, leave the registry and remain away therefrom.
6.
Ms Deacon shall be entitled to forthwith affect the children’s enrolment at a school of her choice and proximate to her home.
7.
Pursuant to section 68B and until 5pm 6 December 2013 Mr Castle shall be and is hereby restrained from:
(a) Contacting the mother, Ms Deacon;
(b) Contacting the children X and Y by any means whatsoever (save for the purpose of attending any counselling or family therapy appointment arranged by the mother and at the request of that counsellor or therapist and with the mother’s knowledge and consent);
(c) Attending at or being within 200 meters of:
(i) The mothers home;
(ii) The school attended by the children or either of them.
8.
Commencing 7 December 2013 Mr Castle shall have contact with and shall communicate with X and Y as follows:
(a) Until the commencement of Term 1 2014 school term - each Saturday from 10am until 5pm;
(b) Thereafter:
(i) Each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend) to commence with the first weekend of each new school term;
(ii) During each short New South Wales school term (those following terms 1,2 and 3) from 10am on the first Saturday of the holiday period until 5pm the following (middle) Saturday;
(iii) During the Christmas School holidays in each year for two one week blocks being from 5pm Christmas Day until 5pm New Years Day and from 5pm 15 January until 5pm 22 January;
(c) By telephone each Wednesday between 6:30pm - 7pm.
9.
That for the purpose of facilitating time with the children that does not occur on school days, the Mother deliver the children to the Father at his usual place of residence at the commencement of their time with the Father and the Father return the children to the Mother at the Mother’s usual place of residence at the conclusion of their time with the Father unless otherwise agreed between the parties and at all other times the father shall collect the children from and return the children to their school/s.
10.
Each parent shall be and is hereby restrained from discussing with the children any issue or allegation raised in these proceedings and shall not allow, cause or permit any other person to do so save the Independent Children’s Lawyer, a Family Consultant or counsellor or family therapist engaged in assisting the mother and/or children.
11.
The mother shall be entitled to provide to any counsellor or family therapist engaged by her to assist her or the children or either of them a copy of the report of Dr S and Ms D if the counsellor or therapist requests same.
12.
That each party keep the other party informed as to his or her residential address and telephone number.
13.
That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
14.
That each party ensure that the children are transported by them to any sporting and extra curricula activities in which the children are participating from time to time and which occur at times when the children are in the care of that party together with any training or other tuition relating to that activity, provided both parties consent to the children’s attendance and participation in same.
15.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
16.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
17.
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 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.
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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