FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhavale & Adwani [2023] FedCFamC2F 1251
File number(s): SYC 3607 of 2022 Judgment of: JUDGE KEARNEY Date of judgment: 28 September 2023 Catchwords: FAMILY LAW - Interlocutory parenting orders – Review of Senior Judicial Registrar’s decision – five-year-old child with complex diagnoses – extreme parental conflict – history of mental health issues – a finding of family violence perpetrated – highly prescriptive interim parenting orders to ameliorate risk of exposure to conflict – need to maintain relationship with both parents until the final hearing – best interests of child
FAMILY LAW – PROCEDURAL – observations and notations - non-compliance with Court rules as to evidence preparation for interlocutory hearing – complex issues – case management consideration highlighted
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Dunst & Dunst [2016] FamCAFC 15
Eaby & Speelman (2015) FLC 93-654
Eastley & Eastley [2022] FedCFamC1F 212
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Keane & Keane [2020] FamCA 99
Keats & Keats [2016] FamCAFC 156
Napier & Hepburn [2006] FamCA 1316
Re Andrew [1996] FamCA 43
Russell & Close [1993] FamCA 62
Sedgley and Sedgley [1995] FamCA 154
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 134 Date of hearing: 17 August 2023 Place: Newcastle Counsel for the Applicant: Ms Mallett KC Solicitor for the Applicant: Broun Abrahams Burreket Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Steiner Legal ORDERS
SYC 3607 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DHAVALE
Applicant
AND: MS ADWANI
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
28 SEPTEMBER 2023
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental Responsibility
2.The respondent, MS ADWANI (‘the mother’) shall have sole parental responsibility for the child X born in 2018 in relation to the following aspects of X’s welfare:
(a)Schooling (including early learning childhood education);
(b)Medical and allied health treatment.
Lives With
3.X shall live with the mother.
Spends time With
4.Until Tuesday 21 November 2023, X shall spend time with the applicant, MR DHAVALE (‘the father’) each fortnight as follows:
(a)From 9.00am to 6.30pm on Sunday 1 October 2023;
(b)From after school (or 3.00pm if X is not at school) to 6.00pm on Wednesday 4 October 2023;
(c)From 9.00am Saturday to 6.30pm Sunday on 7 to 8 October 2023;
(d)In week one - From after school (or 3.00pm if X is not at school) on Wednesday to the commencement of school (or 3.00pm if X is not at school) on Thursday commencing 11 October 2023.
(e)In week two - From 9.00am Saturday to 6.30pm Sunday commencing 21 October 2023.
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- Dhavale & Adwani [2023] FedCFamC2F 1251
- Case
- [2023] FedCFamC2F 1251
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the evidence and expert opinions, particularly focusing on the risks associated with exposing the child to the ongoing conflict between the parents. Given the findings of family violence and the high-conflict environment, the court imposed highly prescriptive interim parenting orders. These orders included specific arrangements for the child's living situation, time-sharing schedules, and special occasions. The court also highlighted the importance of maintaining communication between the parents and specified the use of a particular application for this purpose. Additionally, the court mandated that both parents engage in therapeutic interventions to address the underlying issues contributing to the conflict.
The court concluded that the interim orders were necessary to safeguard the child's welfare and reduce the risk of exposure to conflict. The orders provided a structured environment for the child while ensuring that both parents could maintain a relationship with the child. The court also noted the need for ongoing assessment and potential adjustments to the orders as the child transitions to primary school and experiences other significant life changes. The court further noted procedural issues regarding the preparation of evidence and suggested the possibility of transferring the case to a different division due to the complexity and volume of evidence involved.
Pending further orders, the court discharged all previous parenting orders and established new arrangements, including sole parental responsibility for certain aspects of the child's welfare resting with the mother, specific time-sharing schedules for the father, and detailed provisions for special occasions and changeovers. The court also included provisions for communication, medication administration, overseas travel, and therapeutic interventions, aiming to balance the child's need for stability with the necessity of maintaining relationships with both parents.
Orders
Orders of the court
SYC 3607 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DHAVALE
Applicant
AND:
MS ADWANI
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
28 SEPTEMBER 2023
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1. All previous parenting orders are discharged.
Parental Responsibility
2. The respondent, MS ADWANI (‘the mother’) shall have sole parental responsibility for the child X born in 2018 in relation to the following aspects of X’s welfare:
(a) Schooling (including early learning childhood education);
(b) Medical and allied health treatment.
Lives With
3. X shall live with the mother.
Spends time With
4. Until Tuesday 21 November 2023, X shall spend time with the applicant, MR DHAVALE (‘the father’) each fortnight as follows:
(a) From 9.00am to 6.30pm on Sunday 1 October 2023;
(b) From after school (or 3.00pm if X is not at school) to 6.00pm on Wednesday 4 October 2023;
(c) From 9.00am Saturday to 6.30pm Sunday on 7 to 8 October 2023;
(d) In week one - From after school (or 3.00pm if X is not at school) on Wednesday to the commencement of school (or 3.00pm if X is not at school) on Thursday commencing 11 October 2023.
(e) In week two - From 9.00am Saturday to 6.30pm Sunday commencing 21 October 2023.
5. From Wednesday 22 November 2023, X shall spend time with the father each fortnight as follows:
(a) In week one - From after school (or 3.00pm if X is not at school) on Wednesday to the commencement of school (or 3.00pm if X is not at school) on Thursday commencing 22 November 2023.
(b) In week two - From after school (or 3.00pm if X is not at school) on Friday to 6.30pm on Sunday commencing 1 December 2023.
Special occasions
6. Subject to Order 12 but otherwise notwithstanding the provisions of any Order to the contrary, if X is not otherwise in the father’s care, X shall spend time with the father for special occasions as follows:
(a) Father’s Day – from 9.00am on Father’s Day to the commencement of school (or 9.00am if X is not at school) the following day;
(b) Christmas – from 2.00pm on Christmas Day until 2.00pm on Boxing Day in odd-numbered years commencing in 2023 AND from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in even-numbered years commencing in 2024;
(c) Easter – from 2.00pm on Easter Sunday until 2.00pm on Easter Monday in even-numbered years commencing in 2024 AND from 2.00pm on the Saturday immediately before Easter Sunday until 2.00pm on Easter Sunday in odd-numbered years commencing in 2025;
(d) Diwali – from after school (or 3.00pm if X is not at school) on Diwali to the commencement of school (or 9.00am if X is not at school) the following day in odd-numbered years commencing in 2023;
(e) X’s birthday – from after school (or 3.00pm if X is not at school day) until 6.30pm.
(f) The father’s birthday - from after school (or 3.00pm if X is not at school) until the commencement of school (or 9.00am if X is not at school) the following day.
7. Subject to Order 12 but otherwise notwithstanding the provisions of any Order to the contrary, if X is not otherwise in the mother’s care, X shall spend time with the mother for special occasions as follows:
(a) Mother’s Day – from 9.00am on Mother’s Day to the commencement of school (or 9.00am if X is not at school) the following day;
(b) Christmas – from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in odd-numbered years commencing in 2023 AND from 2.00pm on Christmas Day until 2.00pm on Boxing Day in even-numbered years commencing in 2024;
(c) Easter – from 2.00pm on the Saturday immediately before Easter Sunday until 2.00pm on Easter Sunday in even-numbered years commencing in 2024 AND from 2.00pm on Easter Sunday until 2.00pm on Easter Monday in odd-numbered years commencing in 2025;
(d) Diwali – from after school (or 3.00pm if X is not at school) on Diwali to the commencement of school (or 9.00am if X is not at school) the following day in even-numbered years commencing in 2024;
(e) X’s birthday – from after school (or 3.00pm if X is not at school) until 6.30pm;
(f) The mother’s birthday - from after school (or 3.00pm if X is not at school) until the commencement of school (or 9.00am if X is not at school) the following day.
Changeovers
8. To facilitate X’s time with both parties, changeover shall occur as follows:
(a) Where the commencement or conclusion of X’s time coincides with when X is attending school (including any early learning childhood centre) THEN changeover shall occur at that place of education;
(b) On all other occasions changeovers shall occur at Suburb B Train Station by the parties or either one of them and/or their respective nominee/s PROVIDED such nominee is a person not only known to X but with whom he is comfortable being in the company of.
Communication
9. Subject to Order 10, the parties are to continue to communicate matters relating to the care, welfare and development of X by way of the OurFamilyWizard application (‘OFW app’) and remain responsible for their own costs of using the OFW app.
10. Notwithstanding Order 9, the parties shall immediately inform each other by telephone call of any serious illness or injury sustained by X whilst X is in their respective care as well as providing any particulars of any treatment received by X together with the name and address of the treatment provider and/or location at which X is a patient.
11. The parties shall administer any medication prescribed or recommended for X by his treating medical or allied health professionals and to facilitate this Order:
(a) The parties shall each notify and make available to the other any such prescribed or recommended medication; and
(b) The parties shall ensure that such prescribed or recommended medication is passed between them so that it is in the possession of the party with whom X is either living with or spending time with at that time.
Overseas Travel
12. For the purpose of s 65Y(1)(b) of the Family Law Act 1975 (Cth), the mother shall be permitted to travel with X to the United Kingdom and Europe for a period of up to 28 days in 2023 PROVIDED THAT the mother shall provide to the father:
(a) Not less than 60 days’ notice (via the OFW app) of the intended date upon which X will depart from and return to the Commonwealth of Australia; and
(b) Not less than 14 days prior to travel:
(i) The details of what countries X shall visit;
(ii) An itinerary of when X will be in each country;
(iii) Copies of return flight tickets for X; and
(iv) The addresses at which X shall reside and a telephone number on which the father can communicate with X.
13. In the event that the mother does travel with X overseas, THEN within three (3) months of the date of departure, the mother shall facilitate X spending ‘make up time’ with the father to account for any ordered time between X and the father that is missed as a result of the overseas travel.
Miscellaneous
14. The father is restrained, and an injunction shall issue prohibiting the father from changing X’s residence until after 28 March 2024.
15. Within 24 hours of any change, the father is to notify the mother via the OFW app of any change to his contact telephone number and/or residential address.
16. Within 24 hours of any change, the mother is to notify the father via the OFW app of any change to her contact telephone number.
17. The mother shall do all things and sign all documents to allow the father to add X to the father’s Medicare card.
18. Notwithstanding Order 2, the mother shall notify the father (via the OFW app) of any new or additional treating medical, therapist or allied health professionals with whom X is currently or prospectively engaged, and this Order shall serve as an irrevocable authority for such treators (at their sole discretion) to provide oral and/or written information upon request from the father (and at his sole cost) about X’s symptoms, diagnosis, treatment plan and/or prognosis.
19. Notwithstanding Order 2, by 26 October 2023, the mother shall notify the father (via the OFW app) of the school where X is enrolled to commence his primary education in 2024 and keep the father informed of any other educational service provider with whom X is engaged from time-to-time and this Order shall serve as an irrevocable authority for such educational service providers to provide oral and/or written information upon request from the father (and at his sole cost) about X’s progress including copies of school reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to X’s education to which parents would ordinarily have access.
20. Notwithstanding Order 2, both parties are permitted to attend any 2023 graduation ceremony in which X is a participant; as well as any significant events to which parents would ordinarily attend at X’s primary school in 2024 including his first day of school, any Easter Hat parade, any school assemblies, any school sports days, any school concerts, performances or other culturally significant events and any parent-teacher interviews PROVIDED THAT the parties are not contemporaneously attending the same parent-teacher interview and this Order shall serve as an irrevocable authority to X’s educational service providers.
21. The father shall continue to attend upon his treating consultant psychiatrist Dr C and his treating clinical psychologist Mr D as may be required by them (or any subsequent treating psychiatrist or psychologist) and shall follow all treatment plans and other recommendations that they may respectively prescribe.
22. X’s time with father is conditional upon the father continuing to attend upon Mr D (or any subsequent treating psychologist) on a fortnightly basis or as recommended by the treating psychologist.
23. X’s time with father is conditional upon the father continuing to attend upon Dr C (or any subsequent treating psychiatrist) as recommended by the treating psychiatrist.
24. The father shall attend and complete a men’s behaviour change program.
25. The mother shall continue to attend upon forensic psychologist, Ms E (or any subsequent treating psychologist) as recommended by the treating psychologist.
26. To facilitate these Orders, the parties are permitted to provide a copy of these Orders to any third parties or class of third parties specified in these Orders including but not limited to their respective treating service providers, X’s treating service providers and X’s educational service providers.
27. The parties have leave to provide a copy of the single expert report prepared by Ms F dated 18 November 2022 to their respective treating psychologists and psychiatrists.
28. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders
IT IS FURTHER ORDERED THAT:
29. The compliance and readiness hearing on 13 October 2023 at 10.00am is confirmed.
30. The contravention order list hearing on 13 October 2023 at 10.00am is confirmed.
31. Save for any prospective costs application/s, all outstanding applications in relation to the mother’s review application filed 19 June 2023 are otherwise dismissed.
32. By 4.00pm on 26 October 2023, any party seeking an order for costs shall file and serve an Application in a Proceeding and supporting affidavit(s) and financial statement (if applicable).
33. By 4.00pm on 9 November 2023, the other party shall file and serve a Response to an Application in a Proceeding, with supporting affidavit(s) and financial statement (if applicable).
34. Should an application for costs be filed, THEN pursuant to rr 5.02(2)(c) and 5.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Family Law Rules’), the application will be listed for hearing before Judge Kearney in chambers with no appearances required.
THE COURT NOTES THAT:
A. In the event that the existing apprehended domestic violence order requires amendment to include an exception for the father to approach X’s early learning childhood centre (or for any other reason related to the implementation of these Orders) the mother shall provide her consent to such amendments.
B. Given the high conflict between the parties, the existing current apprehended domestic violence order and X’s diagnoses and symptoms, the parties should consider having a support person with them at changeovers.
C. In the event that whilst in either party’s care, that party deems it necessary for X to be presented to X’s current treating general physician (for example, X has flu-like symptoms), then Order 10 does not apply but the Court would expect that the party with care of X would use the OFW app to notify the other party of this consultation including symptoms, diagnosis, treatment plan and prognosis.
D. The men’s behaviour change program specified at Order 24 shall be conducted face-to-face and the sessions are to be group sessions.
E. In the absence of any previous order about the communication between X and the father during the time that X may be overseas, the Court expects the parties to come to some sort of agreement that will support X’s relationship with the father and meet X’s capacity to engage effectively with the father whilst X is abroad including on any special occasions.
F. Given the timeframes specified in Order 12, there is a prospect of X not spending time with the father on one if not more upcoming special occasions including Christmas.
THE COURT FURTHER NOTES THAT:
G. The parties’ evidence before the Court was not in the form approved by either the Family Law Rules and/or the Federal Circuit and Family Court of Australia (Family Law) (Division 2) Rules 2021 (Cth) which caused considerable delay in the pronouncement of judgment.
H. In light of Notation G, consideration should be given to transferring this matter to Division 1 because of the high parental conflict, the issues in dispute, the relief sought by the mother (premised on a finding of unacceptable risk and/or premised on Re Andrew), the voluminous evidence already filed and the likelihood that there will be at least 10, possibly 12 witnesses including –
(a) at least five (5) lay witnesses (the parties, the father’s previous partner and most likely at least one each of the maternal and paternal grandparents);
(b) four (4) treating expert witnesses (including each party’s respective treating psychologists and psychiatrists);
(c) another two potential experts called by either the father (Dr G) and/or the mother (Dr H) – for whose evidence leave has either not been sought and/or granted to adduce; and
(d) the single expert witness Ms F.
I. During the review hearing and upon invitation from the Court, the father submitted the matter was suitable for transfer to Division 1 and the mother was unsure.
J. There may be some merit in considering the appointment of an Independent Children’s Lawyer because of X’s complex diagnoses, the high conflict between the parties and the significant changes that will have occurred since X was observed (but not interviewed) by the single expert in October 2022 including his transition to primary school in 2024, his experience of unsupervised time with his father and his overseas travel requiring him to adjust to significant changes in his day-to-day routine.
K. In the event that a party fails to comply with the orders made regarding the costs hearing and/or fails to appear at such hearing, THEN consideration will be given to the hearing proceeding on an undefended basis.
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).
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
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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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