FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUNDAS & BLAKE | [2012] FMCAfam 103 |
| FAMILY LAW – Parenting – child aged 2 years – complex care history – insecure attachments – competing residence applications – expert recommends child live primarily with Mother with no overnights with the Father for at least 18 months to repair child’s attachment to Mother unless finding against Mother of parental neglect – recommendations adopted. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAC |
| Applicant: | MR DUNDAS |
| Respondent: | MS BLAKE |
| File Number: | SYC 5596 of 2010 |
| Judgment of: | Sexton FM |
| Hearing dates: | 6 and 7 October and 11 November 2011 |
| Date of Last Submission: | 11 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Livingstone |
| Solicitors for the Applicant: | Doolan Wagner & Callaghan |
| Counsel for the Respondent: | Mr P. Guterres |
| Solicitors for the Respondent: | Christopher Mackay Lawyer |
ORDERS
All previous parenting Orders be discharged.
Parental responsibility
Subject to Order (3), the Mother have sole parental responsibility for [X], born [in] 2009 on condition that she advise the Father of her intention to make any major decision relating to [X]’s long term welfare and that she consider the Father’s views before making the decision.
The Mother ensure [X] is under the care of one primary general practitioner and the Mother forthwith provide the Father with the general practitioner’s name and contact details, and authorise the practitioner to speak to the Father at any time about [X]’s health.
Live with
[X] live with the Mother.
Time with Father
Until 31 August 2013, [X] spend time with the Father as follows:
(a)From 9.00 am to 5.00 pm each Monday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time;
(b)From 9.00 am to 5.00 pm each Wednesday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time;
(c)Each alternate Saturday from 10.00a.m. to 5.00 pm when the Mother will deliver [X] to the Father’s residence at the commencement of the time, and collect [X] from the Father’s residence at the conclusion of the time;
(d)In the event [X] shows signs of distress when in the Father’s care, the Father notify the Mother as soon as practicable, and the parties make arrangements for her to be reunited with the Mother as soon as possible.
From 1 September 2013 until [X] starts school:
(a)From 9.00 am to 5.00 pm each Monday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time (unless the Mother is not working when the parties will share transport equally between each party’s home);
(b)From 9.00a.m. to 5.00p.m. each Wednesday with…
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- AGLC
- Dundas and Blake [2012] FMCAfam 103
- Case
- [2012] FMCAfam 103
- Decision Date
CaseChat Overview and Summary
The court faced several legal issues, including establishing the appropriate allocation of parental responsibility, determining the living arrangements for the child, setting a detailed schedule for the child's time with each parent, and addressing any special occasions or circumstances. Additionally, the court needed to ensure that both parents could effectively communicate and cooperate in the child's best interest, particularly concerning health and educational matters. The court also had to consider measures to prevent the child from being removed from Australia and to safeguard against any potential harm from alcohol consumption by the Mother.
The court ruled in favour of the Mother, granting her sole parental responsibility for [X], contingent on her consulting the Father on significant decisions. The child was to live with the Mother, with specific arrangements for the Father's visitation rights outlined in detail. These arrangements varied with the child's age and school schedule, and included provisions for special occasions such as birthdays and holidays. The court emphasised the importance of information sharing between the parents and mandated regular psychological support for the Mother. Furthermore, the court imposed restrictions on alcohol consumption by the Mother and prohibited both parents from denigrating each other in front of the child. To prevent the child from being removed from Australia, the court ordered airport watch list placements and requested assistance from law enforcement agencies.
In conclusion, the court issued comprehensive orders that detailed parenting responsibilities, living arrangements, visitation schedules, and measures to ensure the child's safety and welfare, reflecting a careful consideration of the child's best interests.
Orders
Orders of the court
1.
All previous parenting Orders be discharged.
Parental responsibility
2.
Subject to Order (3), the Mother have sole parental responsibility for [X], born [in] 2009 on condition that she advise the Father of her intention to make any major decision relating to [X]’s long term welfare and that she consider the Father’s views before making the decision.
3.
The Mother ensure [X] is under the care of one primary general practitioner and the Mother forthwith provide the Father with the general practitioner’s name and contact details, and authorise the practitioner to speak to the Father at any time about [X]’s health.
Live with
4.
[X] live with the Mother.
Time with Father
5.
Until 31 August 2013, [X] spend time with the Father as follows:
(a) From 9.00 am to 5.00 pm each Monday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time;
(b) From 9.00 am to 5.00 pm each Wednesday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time;
(c) Each alternate Saturday from 10.00a.m. to 5.00 pm when the Mother will deliver [X] to the Father’s residence at the commencement of the time, and collect [X] from the Father’s residence at the conclusion of the time;
(d) In the event [X] shows signs of distress when in the Father’s care, the Father notify the Mother as soon as practicable, and the parties make arrangements for her to be reunited with the Mother as soon as possible.
6.
From 1 September 2013 until [X] starts school:
(a) From 9.00 am to 5.00 pm each Monday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time (unless the Mother is not working when the parties will share transport equally between each party’s home);
(b) From 9.00a.m. to 5.00p.m. each Wednesday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time (unless the Mother is not working when the parties will share transport equally between each party’s home);
(c) From 5.00 pm each Friday until 5.00 pm each Saturday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and the Mother to collect [X] from the Father’s residence at the conclusion of the time.
7.
From the time [X] starts school until the commencement of her second year of school:
(a) In Week 1, from after school Thursday until 6.30 p.m. Friday (the next day) when the Father will collect [X] from school at the commencement of her time with him and the Mother will collect [X] from the Father’s residence at the conclusion of her time with him;
(b) In Week 2, from after school Friday until the commencement of school Monday when the Father will collect and deliver [X] from her school;
(c) For one half of each NSW short school holiday period as agreed, and failing agreement, being the second half of the school holiday period;
(d) For two periods of 7 days in the Christmas school holiday periods as agreed and failing agreement, for the 7 days from 27 December and the 7 days from 20 January.
8.
From the commencement of Term 1 in [X]’s second year of school (Year 1):
(a) In Week 1, from after school Thursday until 6.30 p.m. Friday (the next day) when the Father will collect [X] from school at the commencement of her time with him and the Mother will collect [X] from the Father’s residence at the conclusion of her time with him.
(b) In Week 2, from after school Friday until the commencement of school Monday when the Father will collect and deliver [X] from her school.
(c) For one half of each NSW short school holiday period as agreed, and failing agreement, being the second half of the school holiday period.
(d) For one half of the Christmas school holiday period, being the first half in years ending in an odd number and the second half in years ending in an even number.
9.
[X] spend time with the Father on Father’s Day from 10.00 am to 5.00 pm if Father’s Day is not a contact day when the Mother will deliver [X] to the Father’s residence and the Father will return [X] to the Mother’s residence at the conclusion of the time.
10.
If Mother’s Day falls on a day on which the Father is to spend time with [X], [X]’s time with the Father will be suspended at 10.00am on Mother’s Day when the Mother will collect [X] from the Father’s residence.
11.
[X] spend Christmas Day with the Mother each odd numbered year, and Christmas Day with the Father in each even numbered year when the parties share the transport equally and arrange changeover times by agreement between them.
12.
If [X]’s birthday falls on a non-school day, [X] spend three hours with the Father on her birthday, in the vicinity of the Mother’s residence.
13.
If [X]’s birthday falls on a non-school day and otherwise falls on a day during which [X] is to spend time with the Father, the Father’s time is suspended for three hours on that day during which [X] shall be with the Mother in the vicinity of the Father’s residence.
Changeover
14.
If not otherwise provided in these orders, and not otherwise agreed between the parties, the Mother transport [X] to the Father’s residence at the commencement of [X]’s time with him, and the Father return [X] to the Mother’s residence at the conclusion of [X]’s time with him.
Support for the Mother
15.
The Mother consult a psychologist fortnightly for a minimum of 2 years, and thereafter continue to attend upon the psychologist at a frequency recommended by the psychologist.
16.
The Mother provide her psychologist with a copy of these Orders and Reasons for Judgment and a copy of Mr L’s report.
Personal care of [X]
17.
The Father personally care for [X] during the periods he is to spend time with [X] as set out in these orders, unless an emergency, for at least the next three years.
18.
In the event the Father is unable to personally care for [X] during times she is due to be with him, the Father advise the Mother by way of email and SMS, no less than 48 hours before the time is due to commence, and [X] remain in the care of the Mother.
Information sharing
19.
Each parent keep the other parent informed as soon as is reasonably practicable of any:
(a) Serious medical problems or illnesses suffered by [X];
(b) Medication that has been prescribed for [X] that needs to be taken while [X] is in the care of the other parent; and
(c) Other significant matters relevant to the welfare of [X].
20.
The Mother shall keep the Father informed at all times of the name and contact details of [X]’s health practitioners including any specialist medical practitioner she consults with [X], and the Mother shall provide those medical practitioners with a written authority to release information to the Father about [X]’s attendance and/or medical treatment and/or medical advice as the Father may request from that practitioner.
Restraints
21.
The Mother be restrained from consuming any alcohol during [X]’s time with her or from consuming alcohol in the 12 hours prior to [X] being in her care.
22.
Each party be restrained from denigrating the other parent in [X]’s presence or within her hearing, and use that party’s best endeavours to ensure that no other person denigrates the other party in [X]’s presence or within her hearing.
23.
Until [X] is 16 years of age, the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the Child [X] born [in] 2009 (female) from the Commonwealth of Australia.
24.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said Child from the Commonwealth of Australia.
25.
Until [X] is 16 years of age, the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
26.
Pursuant to section 65DA(2) 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 Annexure A 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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