Debona & Debona

Case [2021] FCCA 980

FEDERAL CIRCUIT COURT OF AUSTRALIA

Debona & Debona [2021] FCCA 980

File number: MLC 2521 of 2017
Judgment of: JUDGE O'SULLIVAN
Date of judgment: 12 May 2021
Catchwords: FAMILY LAW – dispute over order for equal shared parental responsibility – live with orders for the children agreed – dispute over time spent orders for the children – evidence of report writer – dispute over order for restraint on time with paternal grandmother – application for overseas travel and passports – final orders in the children’s best interests.
Legislation:

Family Law Act 1975 (Cth) ss 11F, 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 67Z, 68R

Australian Passports Act2005 (Cth)
Cases cited:

Albert & Plowman [2020] FamCAFC 23

Goode & Goode (2006) FLC 93-286

MRR & GR (2010) 240 CLR 461

Lansa & Clovelly [2010] FamCA 80

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

R&R: Children's Wishes (2000) FLC 93-000

Beard & McCarthy [2009] FamCA 737

Penski & Kocher [2013] FamCA 255

Dundas & Blake [2013] FamCAFC 133

Vallans & Vallans [2019] FamCAFC 260

Heath & Hemming (No. 2) (2011) FamCA 749

Johns & Jasapas [2016] FamCA 471

Kuebler & Kuebler (1978) FLC 90-434

Withers v Russell & Anor [2016] FamCA 793

Mosman & Taylor Mosman [2018] FamCA 842
Number of paragraphs: 192
Date of hearing: 17, 18, 19, 22 and 23 March 2021
Place: Dandenong
Counsel for the Applicant: Ms Swart
Solicitor for the Applicant: Barbayannis Lawyers Pty Ltd
Counsel for the Respondent: Ms Paterson
Solicitor for the Respondent: Robinson Gill
Solicitor for the Independent Children's Lawyer: Mr Foo
Solicitor for the Independent Children's Lawyer: Aitken Partners Pty Ltd

ORDERS

MLC 2521 of 2017
BETWEEN:

MR DEBONA

Applicant
AND:

MS DEBONA

Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

12 MAY 2021

THE COURT ORDERS THAT:

1.All extant parenting orders be discharged save that the appointment of the Independent Children’s Lawyer be discharged thirty (30) days after the date of judgment in this matter.

2.The mother have sole parental responsibility for the children, X born in 2011 and Y born in 2013 (“the children”).

3.Subject to these orders, prior to making any final determination with respect to the children’s long term care, welfare, and development, the mother shall:

(a)advise the father in writing (including by way of SMS text message) of the necessity to make a decision for the children (or either them);

(b)seek the father’s written response (including by way of SMS text message) with respect to the decision to be made;

(c)consider any response provided by the father prior to making a final decision; and

(d)advise the father in writing (including by way of SMS text message), as soon as is reasonably practicable, of the decision taken.

4.The children live with the mother.

5.The children spend time with the father:

(a)commencing from 21 May 2021, each alternate weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) to the commencement of school on Monday (or 9.00am if a…

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AGLC
Debona & Debona [2021] FCCA 980
Case
[2021] FCCA 980
Decision Date

CaseChat Overview and Summary

In the matter of *Debona & Debona*, O'Sullivan J of the Federal Circuit Court of Australia made orders concerning the parenting arrangements for two children, X and Y. The dispute involved the parents' highly acrimonious separation and ongoing difficulties in co-parenting, which had led to significant concerns from experts regarding the harm to the children.

The court was required to determine the best interests of the children, X and Y, in light of the parents' protracted and dysfunctional post-separation relationship. This involved considering the history of conflict, including intervention orders, strained communications, and numerous notifications to police and child protection services, to establish appropriate parenting orders that would promote the children's welfare and development.

O'Sullivan J reasoned that the parents were locked in a battle over their rights, failing to focus on the children's rights and their own parental responsibilities. Applying the legislative intent of Part VII of the *Family Law Act 1975* (Cth), which prioritises the child's best interests, the court found it improbable that the parents, particularly the father, would change their behaviour despite the trial. Consequently, the court discharged extant parenting orders and made new orders by consent, granting the mother sole parental responsibility and specifying living arrangements and time spent with the father, along with detailed provisions for communication, education, and health matters, all aimed at safeguarding the children's welfare.

Orders

Orders of the court

MLC 2521 of 2017

BETWEEN:

MR DEBONA

Applicant

AND:

MS DEBONA

Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

12 MAY 2021

THE COURT ORDERS THAT:

1. All extant parenting orders be discharged save that the appointment of the Independent Children’s Lawyer be discharged thirty (30) days after the date of judgment in this matter.

2. The mother have sole parental responsibility for the children, X born in 2011 and Y born in 2013 (“the children”).

3. Subject to these orders, prior to making any final determination with respect to the children’s long term care, welfare, and development, the mother shall:

(a) advise the father in writing (including by way of SMS text message) of the necessity to make a decision for the children (or either them);

(b) seek the father’s written response (including by way of SMS text message) with respect to the decision to be made;

(c) consider any response provided by the father prior to making a final decision; and

(d) advise the father in writing (including by way of SMS text message), as soon as is reasonably practicable, of the decision taken.

4. The children live with the mother.

5. The children spend time with the father:

(a) commencing from 21 May 2021, each alternate weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) to the commencement of school on Monday (or 9.00am if a non-school day) and such time to continue through all school holiday periods in the existing cycle, but be extended such that instead of concluding on Monday it shall conclude at 4:00pm on the Tuesday;

(b) in the event that the children are not already in the father’s care on each of the children’s birthday(s) and the father’s birthday, for a period of three hours at times to be agreed between the parties and in default of agreement from 4:00pm until 7:00pm if the birthday falls on a school day and from 10:00am until 1:00pm if the birthday falls on a weekend;

(c) from 10:00am until 5:00pm on Father’s Day;

(d) from 3:00pm on Christmas Day until 3:00pm on Boxing Day in 2021 and each alternate year thereafter;

(e) from 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2022 and each alternate year thereafter;

(f) otherwise as agreed in writing (including by text message).

6. The time spent by the children with the father pursuant to 5 hereof be suspended as follows:

(a) in the event that the children are not already in the mother’s care on each of the children’s birthday and the mother’s birthday, for a period of three hours at times to be agreed between the parties and in default of agreement from 4:00pm to 7:00pm if the birthday falls on a school day and from 10:00am to 1:00pm of the birthday falls on a weekend;

(b) on Mother’s Day from 10:00am until 5:00pm;

(c) from 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2021 and each alternate year thereafter;

(d) from 3:00pm on Christmas Day until 3:00pm on Boxing Day in 2022 and each alternate year thereafter.

7. The parents ensure the children continue to attend V School until the completion of Grade 6 for each child.

8. Upon each of the children being eligible for enrolment in secondary school, the parents shall enrol the children in B School (commencing in the Suburb C Campus) with each parent equally responsible for the school fees for the children.

9. All changeovers that do not occur at the children’s school shall occur at KFC Suburb D Shopping Centre and each parent may nominate a family member or friend to assist with changeover if either parent is not able to attend; and both parents shall ensure that no more than one person each attends changeovers for the children.

10. Each parent is restrained by injunction from:

(a) denigrating the other parent or extended family members in the presence or hearing of the child/ren and use their best endeavours to prevent any third party from so denigrating and remove the child/ren from any situation whereby a third party attempts to denigrate the other parent or extended family members;

(b) discussing any details of these proceedings with the child/ren or allowing any other third party to do so.

11. Both parents forthwith enrol in and complete the Tuning into Teens Program or similar program as approved by the Independent Children’s Lawyer and provide proof of enrolment and completion to the other parent’s solicitors within 24 hours of obtaining a certificate of completion.

12. Both parents keep each other informed of:

(a) any significant injuries or illness that the child/ren suffers whilst in their care, as soon as practicable, following such injury or illness;

(b) any instances where the child/ren need(s) urgent medical attention during their time with the child/ren, immediately if possible, or otherwise as soon as practicable thereafter;

(c) any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the parent in whose care the child/ren are in to inform the other parent immediately), with each parent permitted to visit the child/ren in hospital irrespective as to with whom the child/ren are staying at the time of such hospitalisation; and

(d) any general medical or health issues relating to the child/ren, including but not limited to particulars of any medication prescribed to the child/ren and names and contact details of the prescribing health practitioner and such medication must be provided to the other parent via text or email, if applicable.

13. Both parties authorise the general medical practices at which the children attend when in their respective care, to obtain from and exchange with each other any information they may require.

14. The parents ensure that, save for emergencies, for the purposes of any dental or orthodontic treatment for either child, the children are taken to the Town E Dental Surgery at F Street, Town E.

15. The parents ensure that Y continues to attend upon Mr G, psychologist, and that X continues to attend upon Ms H, psychologist, at J Psychology.

16. The parties communicate by text message and email about the care welfare and development of the children, save for the case of a serious medical emergency when such communication may be telephone.

17. The parents do all such acts and things necessary to keep the other informed at all times of and any changes to (within 48 hours of any change):

(a) their residential and postal address; and

(b) their mobile telephone numbers and email address.

18. Each of the parents are authorised to receive copies of all school reports, school photograph order forms and school related documentation normally sent to parents (at their own expense) and attend all parent teacher interviews, extracurricular activities including concerts, plays, sporting events and the like, normally attended by parents.

19. The mother be at liberty to provide the children’s treating health practitioners and psychologists with a copy of the reports of Dr K and any final orders made in these proceedings.

20. The mother be at liberty to produce to the Magistrates’ Court of Victoria, Victoria Police, the Department of Families, Fairness and Housing copies of these final orders and any reasons.

21. The parents each purchase a (separate) iPad for both children to be used at their respective homes.

22. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

23. Pursuant to section 68P of the Family Law Act 1975, to the extent that any parenting arrangements that are specified in these orders are inconsistent with the current terms of any existing Intervention Orders these orders take precedence over the existing Intervention Order with Case Number ....

24. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. Orders 4 and 7 to 23 were by consent.

B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

While the parties have been caught up in that struggle, the experts involved with the children have profound concerns about the harm done to the children. One of those experts said “this is one of the more dysfunctional post-separation relationships between two parents that I have been involved with in almost two decades.” Regrettably, and having heard the evidence in these proceedings, I agree. The same expert also said (Cassandra like) that:…these parents have consumed resources, both public and private, at enormous time and expense, over the last four years; their separation was highly acrimonious, arguably beginning a trajectory of hostilities that will persist for years into the future; there have been consistent issues at changeover, with the children currently being ferried between their parents' care by members of the paternal family; there have been several applications for intervention orders and undertakings, including the most recent which was initiated by the respondent mother in September 2019; any communications that have occurred between the parties since binding final orders at the end of 2018 have been strained, or agitated, or completely lacking; there have been innumerable notifications to police and Child Protective Services relating to the children. This fact pattern shows that despite any overtures about working collaboratively that these parents may make during assessments, or indeed in open court for that matter, do not align with the way in which they behave in­ situ.BACKGROUND The father and the mother were married in 2005 after the father had travelled to Country N where he met the mother, who was almost a decade younger than him. The father and the mother began living together (in the same house in Suburb L as the father’s brother) in 2006 and separated a decade later in June 2016. At the time of separation, the father, the eldest child and his brother left the Suburb L property and stayed with his parents. In August 2016, the mother and the youngest child moved from the Suburb L property. The father, his brother and the eldest child returned to occupy the Suburb L property. In January 2017, the father took the eldest child for a physical examination by the Police. Proceedings were then commenced by the mother in March 2017 for parenting and property orders. At the first Court date, interim orders were made for both children to live with the mother and spend time with the father. The first family report was released in May 2017. Later that month, a final intervention order was made against the father. In July 2017, the parties compromised their property dispute and final property orders were made by consent. The second family report was released in August 2018 in preparation for the trial that had been fixed for November 2018. In the shadow of that trial and on 2 November 2018, the parties asked Judge Williams (as Her Honour then was) to make final parenting orders by consent, which provided for, amongst other things, equal shared parental responsibility, the children to live with the mother and spend substantial and significant time (five nights a fortnight) with the father as well as shared time on holidays and special occasions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whilst Counsel for the father said her client would sign any passport application made by the mother I am disinclined to accept that he will follow through on that assertion. Moreover, the mother opposed the father’s orders for him to be able to travel overseas with the children. Given the difficulties referred to above, it was accepted by Counsel for the mother (and not cavilled with by Counsel for the father) that the issue of passports (if the father does not honour the instructions that he gave Counsel on the final day of the trial) and overseas travel could be addressed by a specific issues application (at some point in the future (subject to the vagaries of the progress in recovery from the pandemic)) and this would not otherwise derogate from the position that final orders would otherwise be made at the end of these proceedings.CONCLUSION In conclusion, the sad details traversed above set out the reasons why the orders at the beginning of these reasons are, I am satisfied it is in the children’s best interests. The evidence of both parties left a perception that they were locked in a battle over their rights as parents. They both require a reminder in the strongest possible terms that the legislative intent of Part VII of the Act is to focus on the “rights of children, on the one hand, and [the] duties, obligations and responsibilities as parents on the other”.[22] However, given the evidence heard at the trial, it is improbable that the manifest sense of those observations will be understood. I remain circumspect that despite having been through the ordeal of the trial the parents, particularly the father, will change the way they behave. [22] As per Kent J sitting as the Full Court in Vallans & Vallans [2019] FamCAFC 260 following Blaze & Anor & Grady & Anor [2015] FamCA 1064 Mother’s Day, Father’s Day Christmas Birthdays

Ratio Decidendi

Legal Principle Established

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