DELANOY & DELANOY - [2020] FCCA 2512

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANOY & DELANOY

[2020] FCCA 2512

Catchwords:
FAMILY LAW – Parenting Orders – where there are two subject children – breakdown of relationship between parents – where communication between the parents are poor – where the children have meaningful relationships with both parents – where best interests of the children are considered – where mother seeks sole responsibility – where father seeks unsupervised time with the children – sole parental responsibility in favour of the mother following the process of consultation – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117

Cases cited:

Goode and Goode (2006) 206 FLR 212

M v M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518

Ramsey & Hays (2017) 318 FLR 45

Sargent and Selwyn [2020] FamCAFC 110

Applicant:

MR DELANOY

Respondent:

MS DELANOY

File Number:

PAC 1012 of 2018

Judgment of:

Judge Humphreys

Hearing dates:

17 – 21 August 2020

Date of Last Submission:

31 August 2020

Delivered at:

Parramatta

Delivered on:

2 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Blackah

Solicitors for the Applicant:

Calabrese Lawyers

Counsel for the Respondent:

Mr Cummings

Solicitors for the Respondent:

Mills Oakley Lawyers

Counsel for the Independent Childrens Lawyer:

Ms Teicher

Solicitors for the Independent Childrens Lawyer:

Sarah Bevan Family Lawyers

ORDERS

All previous parenting orders in relation to the children, X, born in 2013 and Y, born in 2015 (“the children”) are discharged.
The respondent mother is to have sole parental responsibility in relation to the medical, education and religious matters pertaining to the children.
In relation to the respondent mother’s exercise of sole parental responsibility:
(a)the respondent mother must notify the applicant father by email of any proposed decision regarding the long-term care and welfare of the children, together with the reasons for the proposed decision, such notification to be not less than three weeks prior to the proposed decision;
(b)the applicant father must notify the respondent mother by email of any views concerning the proposed decision from the respondent mother within seven days;
(c)the applicant mother must take into consideration any views expressed by the applicant father, in relation to the proposed decision, provided she notifies the applicant father of her views, by email within seven days of receiving notice of his proposed decision;
(d)in the event that the respondent mother elects to make a decision, which is contrary to the applicant father’s views, she must set out the reasons as to why she disagrees with his views, by email, within two days of having received notice of his views;
(e)the respondent mother must notify the applicant father about the final decision, by email, forthwith upon having made such a decision.
In relation to the exercise of the respondent mother’s sole parental responsibility making a long-term medical decisions:
(a)unless in the event of a medical emergency or hospitalisation, the respondent mother is to ensure that the children are treated by Dr B, as their General Practitioner and any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DELANOY & DELANOY

Details

AGLC: DELANOY & DELANOY [2020] FCCA 2512
Case: [2020] FCCA 2512
Decision Date: 2 October 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge Humphreys considered parenting orders concerning two subject children, X and Y, following the breakdown of the relationship between their parents. The mother sought sole parental responsibility, while the father sought unsupervised time with the children. Communication between the parents was poor, yet the children maintained meaningful relationships with both.

The court was required to determine the best interests of the children and, in doing so, to decide on the appropriate parenting arrangements, specifically addressing the level of parental responsibility and the extent of time each parent would spend with the children. The court also needed to establish mechanisms for communication and decision-making between the parents, particularly concerning the children's medical and educational welfare.

The court's reasoning led to the discharge of previous parenting orders and the granting of sole parental responsibility to the mother for medical, educational, and religious matters. However, this sole responsibility was qualified by a detailed process requiring the mother to consult with the father on long-term decisions, provide reasons for any disagreement with his views, and keep him informed of final decisions. Specific provisions were made for medical decision-making, including the involvement of a nominated General Practitioner and the father's right to liaise with medical professionals. The court also outlined a phased schedule for the father's time with the children, including specific provisions for school holidays and special occasions, and mandated the parties' engagement with a family service to improve communication and co-parenting skills.

The final orders discharged all previous parenting orders and vested sole parental responsibility in the mother for medical, educational, and religious matters, subject to a detailed consultation process with the father. The children were ordered to live with the mother, and specific time arrangements were made for the father, including provisions for special occasions and school holidays. The parties were also ordered to engage with a family service for a minimum of 12 months and were restrained from making derogatory comments about each other. Finally, both parties were ordered to contribute to the costs of the Independent Children's Lawyer.

Orders

Orders of the court

All previous parenting orders in relation to the children, X, born in 2013 and Y, born in 2015 (“the children”) are discharged.

The respondent mother is to have sole parental responsibility in relation to the medical, education and religious matters pertaining to the children.

In relation to the respondent mother’s exercise of sole parental responsibility:

(a) the respondent mother must notify the applicant father by email of any proposed decision regarding the long-term care and welfare of the children, together with the reasons for the proposed decision, such notification to be not less than three weeks prior to the proposed decision;

(b) the applicant father must notify the respondent mother by email of any views concerning the proposed decision from the respondent mother within seven days;

(c) the applicant mother must take into consideration any views expressed by the applicant father, in relation to the proposed decision, provided she notifies the applicant father of her views, by email within seven days of receiving notice of his proposed decision;

(d) in the event that the respondent mother elects to make a decision, which is contrary to the applicant father’s views, she must set out the reasons as to why she disagrees with his views, by email, within two days of having received notice of his views;

(e) the respondent mother must notify the applicant father about the final decision, by email, forthwith upon having made such a decision.

In relation to the exercise of the respondent mother’s sole parental responsibility making a long-term medical decisions:

(a) unless in the event of a medical emergency or hospitalisation, the respondent mother is to ensure that the children are treated by Dr B, as their General Practitioner and any paediatrician recommended by Dr B. In the event this remains opposed to by the applicant father, then the respondent mother invites the applicant father to propose three general practitioners, local to the parents (excluding Dr C) for the respondent mother, to select one from the three and to provide the name and contact details of that medical practitioner, to the applicant father;

(b) the respondent mother must authorise and do all things, sign all documents and give all consents necessary to enable the applicant father to liaise directly with any doctor, to attend appointments either solely or with the respondent mother (as agreed in writing) at the hospital or other medical appointments with the children, to provide and obtain information and copies of any medical reports about the physical and/or mental health of the children and the progress of any treatment children may be receiving;

(c) that the respondent mother be guided by any recommendation made by any treating medical practitioner in relation to the children;

(d) the respondent mother must notify the applicant father of any proposed medical decision regarding the long-term care and welfare of the children, together with the reasons for the proposed decision and such notification to be by way of email not less than three weeks prior to the proposed decision;

(e) the applicant father must notify the respondent mother by email of any views concerning the proposed decision by the respondent mother within seven days;

(f) the respondent mother must take into consideration any views expressed by the applicant father, in relation to the proposed decision, provided she notifies the applicant father of her views by email within seven days of receiving the notice of his proposed decision;

(g) in the event the respondent mother elects to make a decision which is contrary to the applicant father’s views, she must set out the reasons as to why she disagrees with his views, by email within two days of having received notice of her views;

(h) the respondent mother must notify the applicant father of the final decision, by email, forthwith upon having made such a decision.

In relation to the exercise of sole parental responsibility for decisions with greater urgency, the respondent mother must, as far as practicable, follow the same process as set out in Orders three and four, but with timing abridged to allow for the urgent nature of the decision.

The children live with the respondent mother.

That the children spend time with the applicant father as follows:

(a) for a period of four weeks from the date of these orders;

(i) each Saturday from 9:30am until 6:30pm;

(ii) each Wednesday from the conclusion of school until 7.00pm.

(b) Thereafter, until 30 June 2021:

(i) in week one, of the two week cycle from 9:00am Saturday until 5:00pm Sunday;

(ii) in week two, of the two week cycle on Wednesday from the conclusion of school or 3:15pm if not a school day, until the commencement of school on Thursday or 9:15am if not a school day;

(iii) in the New South Wales school holiday periods, from 5:00pm Friday to 5:00pm Sunday on each alternative weekend, commencing the second Friday of the school holiday period.

From 1 July 2021 until the commencement of school term in 2022:

(a) in week one, of a two week cycle from the conclusion of school on Friday or 3:15pm if not in the school day until the commencement of school Monday or 9:15am, if not on a school day;

(b) in week two, of the two week cycle, on Wednesday from the conclusion of school or 3:15pm, if not in school day until commencement of school on a Thursday or 9:15am, if not on a school day;

(c) in the New South Wales school holiday periods, from 9:00am Saturday to 9:00am Thursday, each alternative week commencing the first Saturday of the holiday period.

From the commencement of school in 2022:

(a) in week one, of the two week cycle from the conclusion of school on Friday or 3:15pm if not on the school day, until the commencement of school Monday or 9:15am, if not on a school day;

(b) in week two, of the two week cycle, Wednesday from the conclusion of school 3:15pm, if not on a school day until the commencement of school on Friday or 9:15am, if not on a school day;

(c) for one half of the New South Wales school holiday periods as agreed between the parties, but failing agreement, for the first half of the school holidays in even-numbered years during the second half of the school holidays in odd numbered years.

10.

For the purpose of determining half the school holidays:

(a) the time shall commence at the conclusion of school on the last Friday of school term or 3:15pm, if not a school day and;

(b) the midpoint shall be 9:00am on the second Saturday the school holidays in the New South Wales Terms 1,2 and 3 school holidays and 9:00am on the third Saturday in the New South Wales Term 4 school holidays.

11.

The last day of school holidays is deemed to be the first Monday of the new school year or 9:00am, if not on a school day.

12.

Notwithstanding any other order, the applicant father spend the following special occasions with the children:

(a) On Father’s day from 9:00am to 5:00pm;

(b) on Father’s Day in 2021 and each year thereafter, from 9:00am until the commencement of school on Monday or 9:15am if not in the school day and if not already in the father’s care;

(d) during odd numbered years from 1:00pm Christmas Day until 1:00pm on Boxing Day;

(e) during even-numbered years from 1:00pm Good Friday until 1:00pm Easter Saturday;

(f) during odd numbered years from 1:00pm on Easter Saturday until 1:00pm on Easter Sunday;

(g) on each of the children’s birthdays, in even numbered years, from 10.00am till 6.00pm, or if a school day from the conclusion of school till 6.30pm.

(h) at any other times, as agreed between the respondent mother and applicant father in writing.

13.

Notwithstanding any other orders above, the children spend additional time with the respondent mother as follows:

(a) on Mother’s Day from 9:00am until resumption of the applicant father’s time, pursuant to these orders;

(b) during odd numbered years from 1:00pm on Christmas Eve until 1:00pm on Christmas Day;

(d) during odd numbered years 1:00pm on Good Friday until 1:00pm on Easter Saturday;

(e) during even-numbered years from 1:00pm on Easter Saturday until 1:00pm on Easter Sunday;

(f) on each of the children’s birthdays in odd numbered years, from 10.00am until 6.30pm if a school day, from the conclusion of school until 6.30pm.

14.

For the purposes of changeover, that does not occur at the children’s school, the applicant father collect the children from the respondent mother’s residence, at the commencement of his time and the respondent mother shall collect the children from the applicant father’s residence, at the conclusion of time.

15.

The respondent mother and applicant father must immediately notify the other parent, via text message or telephone call, to the other parents mobile phone of any illness, medical attendance, medical emergency, serious medical problems, hospitalisation or accident, in relation to any of the children, when the children are living with or spending time with them, together with such notice the parent is to provide all details of any medical treatment, treating medical practitioner and/or medical facility or hospital that is providing the treatment for the child/children.

16.

The respondent mother must authorise and do all things, sign all documents and give all consents necessary to enable the applicant father to liaise directly with the children’s school principals or teachers, to obtain any information about the children’s progress at school, or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities and to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to parents directly from school.

17.

That the parent with whom the children are living, pursuant to these orders, shall take the children to and from and remain with the children, during any schooling or extracurricular activity, in which the children are scheduled to participate and the other parent shall only be at liberty to attend such activities, if the children are participating in an assembly, presentation, sports match or other significant activity.

18.

The respondent mother must authorise and do all things, sign all documents and give all consents necessary, to enable the applicant father to attend all school events and co-curricular activities the children are involved in, but not limited to swimming carnivals, sports days, performances, parent/teacher interviews and other educational activities.

19.

That the parties engage with the UNIFAM service ‘Keeping Contact’ (also known as the ‘Parenting Orders Program) alternatively, another nominated specialist service, within seven days of these orders being made and do all things required by the service, including but not limited to, attending any individual sessions and making the children available for any appointments as requested by the allocated therapist/s.

20.

The parties attend this program for a minimum of 12 months and on at least a monthly basis, from the date of these orders, noting that the purpose of such therapy is to assist the parties to implement the final orders in a child focused manner by:

(a) establishing guidelines for the parties communication with each other,

(b) developing strategies for resolving conflict between the parties,

(d) a copy of the single expert family report of Ms D to be released to the nominated service provider to assist them in their work with the parents and children.

21.

That the parties are restrained from using offensive language, making derogatory comments or denigrating the other parent or the respective families, to the other parent and either of the children schools, providers of extracurricular activities, medical or allied health professionals.

22.

Both the applicant father and the respondent mother must each pay the Legal Aid NSW the sum of $1,650.00, being the unpaid contribution towards the costs of the ICL.

Note: The commencement of weekend time spent with the applicant father is to be aligned and be the same weekend as when the children’s older brother, E, spends time with his father. This is to ensure that all three children have an alternate weekend with each other and their mother.

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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