FEDERAL CIRCUIT COURT OF AUSTRALIA
Donalds & Donalds [2020] FCCA 3604
File number(s): MLC 11505 of 2020 Judgment of: JUDGE CARTER Date of judgment: 21 December 2020 Catchwords: FAMILY LAW – Parenting – Unilateral relocation – Father seeks return of child – allegations of family violence – allegations of risk – Mother’s health – practicability – Father’s relationship with the child – Mother to return to Victoria – orders made. Legislation: Family Law Act 1975 (Cth), ss 11F, 60B, 60CC, 65D, 102NA, 102NA(1)(c)(ii) Cases cited: Goode & Goode [2006] FamCA 1346 Number of paragraphs: 63 Date of last submission/s: 16 December 2020 Date of hearing: 11 & 16 December 2020 Place: Melbourne Solicitor for the Applicant: Joseph David Lawyers The Respondent appeared in person. Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
MLC 11505 of 2020 BETWEEN: MR DONALDS
Applicant
AND: MS DONALDS
Respondent
ORDER MADE BY:
JUDGE CARTER
DATE OF ORDER:
21 DECEMBER 2020
THE COURT ORDERS THAT:
1.The child X born in 2019 (“the child”) live with the Mother.
2.The Mother return the child to live in the metropolitan region of Melbourne, Victoria by no later than 31 March 2021.
3.The child spend time and communicate with the Father as follows:-
(a)whilst the parents are located in different States, by electronic communication, being via Zoom, FaceTime or Skype every alternate day between 6.00pm and 6.15pm, with the Mother to facilitate the call;
(b)for the first six face-to-face spend time periods, for not less than two hours, each week, either in New South Wales (if that can occur) or in Victoria upon the Mother’s return to Victoria, such time to be professionally supervised by a service nominated by the Independent Children’s Lawyer, at the Father’s expense; and
(c)thereafter, for two hours every Tuesday, Thursday and Saturday at times to be agreed taking into consideration the child’s routine and failing agreement from 3.00pm until 5.00pm.
4.The Father shall meet the costs of a supervisor’s report upon the conclusion of the sixth supervised visit, such report to be provided to the Mother and to the Independent Children’s Lawyer.
5.The parties have liberty to apply following the birth of the parents’ second child (anticipated on or about 3 February 2021).
6.Each parent provide to the Independent Children’s Lawyer within 24 hours their residential addresses and contact telephone numbers, and notify the Independent Children’s Lawyer within 24 hours of any change to those details, NOTING THAT the Independent Children’s Lawyer is not to provide the Mother’s address to the Father without the Mother’s agreement in writing or order of this Court.
7.Within 24 hours the Mother provide to the Father and the Independent Children’s Lawyer via email the following information:-
(a)the name and address of her treating doctor and any medical specialist who is currently treating her; and
(b)her birth plan, including the name and address of the hospital where she intends to give birth to the parents’ second child.
8.The Mother keep the Father informed via email or SMS text…
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CaseChat Overview and Summary
The court was required to determine the primary residence of the child, the location where the child would live, and the specific arrangements for the child to spend time and communicate with both parents. Additionally, the court needed to address the financial responsibilities for supervised contact and reporting, the provision of information between the parties and the Independent Children’s Lawyer, and prohibitions against denigration and physical discipline of the child. The court also considered the application of specific provisions of the *Family Law Act 1975* (Cth) regarding cross-examination and the preparation of a Family Report.
Carter J ordered that the child, X, live with the Mother and be returned to the metropolitan region of Melbourne, Victoria, by 31 March 2021. The court detailed specific arrangements for the child to spend time and communicate with the Father, including electronic communication while the parents were in different states and supervised face-to-face contact upon the Mother's return to Victoria. The Father was ordered to meet the costs of the supervisor's report for the initial supervised visits. The court also made orders regarding the exchange of addresses and contact details with the Independent Children’s Lawyer, the provision of medical and birth plan information by the Mother, and the Mother's obligation to keep the Father informed of the child's health. Prohibitions were placed on both parents from denigrating the other party or physically disciplining the child. The court also requested Victoria Legal Aid provide assistance to the Mother under the cross-examination scheme and ordered a court-funded Family Report to be prepared. The proceedings were adjourned for mention and listed for a final hearing.
Orders
Orders of the court
MLC 11505 of 2020
BETWEEN:
MR DONALDS
Applicant
AND:
MS DONALDS
Respondent
ORDER MADE BY:
JUDGE CARTER
DATE OF ORDER:
21 DECEMBER 2020
THE COURT ORDERS THAT:
1. The child X born in 2019 (“the child”) live with the Mother.
2. The Mother return the child to live in the metropolitan region of Melbourne, Victoria by no later than 31 March 2021.
3. The child spend time and communicate with the Father as follows:-
(a) whilst the parents are located in different States, by electronic communication, being via Zoom, FaceTime or Skype every alternate day between 6.00pm and 6.15pm, with the Mother to facilitate the call;
(b) for the first six face-to-face spend time periods, for not less than two hours, each week, either in New South Wales (if that can occur) or in Victoria upon the Mother’s return to Victoria, such time to be professionally supervised by a service nominated by the Independent Children’s Lawyer, at the Father’s expense; and
(c) thereafter, for two hours every Tuesday, Thursday and Saturday at times to be agreed taking into consideration the child’s routine and failing agreement from 3.00pm until 5.00pm.
4. The Father shall meet the costs of a supervisor’s report upon the conclusion of the sixth supervised visit, such report to be provided to the Mother and to the Independent Children’s Lawyer.
5. The parties have liberty to apply following the birth of the parents’ second child (anticipated on or about 3 February 2021).
6. Each parent provide to the Independent Children’s Lawyer within 24 hours their residential addresses and contact telephone numbers, and notify the Independent Children’s Lawyer within 24 hours of any change to those details, NOTING THAT the Independent Children’s Lawyer is not to provide the Mother’s address to the Father without the Mother’s agreement in writing or order of this Court.
7. Within 24 hours the Mother provide to the Father and the Independent Children’s Lawyer via email the following information:-
(a) the name and address of her treating doctor and any medical specialist who is currently treating her; and
(b) her birth plan, including the name and address of the hospital where she intends to give birth to the parents’ second child.
8. The Mother keep the Father informed via email or SMS text message of any serious illness, accident, or injury sustained by the child and any medical treatment received by the child, including the name and contact details of the child’s treating medical practitioners and authorise those people to provide the Father with information about the child’s treatment.
9. The parties each be and are hereby restrained from:-
(a) exposing the child to denigration of the other party; and
(b) physically disciplining the child;
to or in the presence or hearing of the child or from permitting any other person so to do.
10. Pursuant to section 102NA(1)(c)(ii) of the Family Law Act 1975 (Cth) (“the Act”), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Mother under the cross-examination scheme.
11. The proceedings are adjourned to 1 April 2021 at 10.00am for mention.
12. Pursuant to Section 62G(2) of the Family Law Act 1975, a court funded Family Report be prepared in relation to the parties and the child, to be released 35 days prior to trial. The parties shall comply with all reasonable directions of the Family Consultant including making themselves, the children and any other relevant person available at times nominated by the Family Consultant.
13. The Family Consultant may inspect all subpoenaed material which has been released to the parties.
14. Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
15. The proceedings are listed for Final Hearing for 3 days commencing 9 June 2021 at 10.00am.
16. Each of the parties electronically file and serve any Amended Initiating Application or Amended Response, an updated Financial Statement if relevant, and one trial affidavit upon which they seek to rely by no later than 28 days prior to the Final Hearing.
17. Each of the parties be at liberty to electronically file a short affidavit in reply by no later than 14 days prior to the Final Hearing.
18. The Independent Children's Lawyer electronically file and serve any material on which they seek to rely by no later than 7 days prior to the Final Hearing.
19. Each party electronically file and serve a Court Book by no later than two days prior to trial, such Court Book to:-
(a) be in portable document format (PDF);
(b) be capable of being searchable for specified text;
(c) be paginated and have an index;
(d) have each entry in the index electronically bookmarked; and
(e) include:-
(i) an Outline of Case document;
(ii) all documents previously filed in the proceedings upon which that party seeks to rely at Final Hearing, NOTING THAT any expert evidence and/or welfare reports are to be included in the Court Book of the Independent Children’s Lawyer, and in the absence of the Independent Children’s Lawyer, to be included by the Applicant.
20. Liberty is granted to the parties to apply generally and at short notice.
21. Pursuant to sections 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 are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. Pursuant to order 10 hereof, the Mother do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable her legal representation at Final Hearing.
B. The relevant application referred to in Notation A hereof is available to the parties at https://www.legalaid.vic.gov.au/find-legal-answers/commonwealth-family-violence-and-cross-examination-of-parties-scheme.
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
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Evidence Before The Court
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