Earnshaw & Farella
[2022] FedCFamC1F 1019
Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Earnshaw & Farella [2022] FedCFamC1F 1019
File number(s): BRC 8029 of 2020 Judgment of: CAREW J Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – PARENTING – Where the parents reached agreement in relation to final parenting arrangements for the two subject children on the first day of trial – Where a minute of order was submitted, signed by the mother and father – Where the independent children’s lawyer supports the proposed arrangement save for an equal time arrangement for the youngest child, which she neither consents to nor opposes – Where a final parenting order is made. Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 10 Date of hearing: 14 December 2022 Place: Brisbane Counsel for the Applicant: Mr Todman Solicitor for the Applicant: Stolar Law Pty Ltd Counsel for the Respondent: Mr Ness Solicitor for the Respondent: Cherry Family Lawyers Counsel for the Independent Children's Lawyer: Ms Murphy Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDER
BRC 8029 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EARNSHAW
Applicant
AND: MR FARELLA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
14 DECEMBER 2022
THE COURT ORDERS BY CONSENT OF THE PARENTS THAT:
1.All previous parenting orders be discharged.
2.The father shall have sole parental responsibility for the children, X, born 2006, and Y, born 2011 (collectively “the children”).
3.In the exercise of his parental responsibility, and before making a decision in relation to a major long term issue for one or both child/ren, the father shall:
(a)advise the mother in writing of the decision to be made, along with his preferred decision, reasons for same and any information he considers necessary;
(b)invite the mother’s input/contribution into the decision to be made;
(c)in the event that a written response is not received within seven (7) days, the father will make such decision as may be required;
(d)in the event that the mother provides a response, the father will consider the contribution and input being made by the mother, then make the decision;
(e)inform the mother of the decision ultimately made.
4.Notwithstanding the provisions of these Orders:
(a)the party with care of the child shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with them.
As to the child X
5.The child X shall live with her father.
6.X shall spend time with the mother at such times and on such terms as can be agreed between the mother and X.
7.The mother shall be at liberty to communicate with X via her own mobile telephone device, or other electronic means at all reasonable times.
8.X shall attend B School for the balance of her secondary education.
As to the child Y
9.The child Y shall live between her parents’ houses equally, on a “week about basis”, with changeover to occur at the conclusion of school Friday, or 3:00pm Friday if not a school day.
10.The child Y spend time and communicate with the parents at all times as the mother and the father agree in writing and failing agreement, on the following special occasions as follows:
(a)Christmas:
(i)In odd numbered years:
A.with the father, from 9:00am Christmas Eve until 2:00pm Christmas Day, and
B.with the mother, from 2:00pm Christmas Day until 5:00pm Boxing Day;
(ii)In even numbered years:
A.with the mother, from 9:00am Christmas Eve until 2:00pm Christmas Day; and
B.with the father, from 2:00pm Christmas Day until 5:00pm Boxing Day.
(b)Easter:
(i)In even numbered years, with the mother from 4:00pm Holy Thursday (ie the Thursday immediately before Easter Sunday) until 5:00pm Easter Monday; and
(ii)In odd numbered years, with the father from 4:00pm Holy Thursday (ie the Thursday immediately before Easter Sunday) until 5:00pm Easter Monday.
(c)In the event that Y is not otherwise spending time with her mother on Mother’s Day, then she shall spend time with her from 9.00am to 5.00pm on Mother’s Day;
(d)In the event that Y is not otherwise spending time with her father on Father’s Day, she will return to the father’s care from 9.00am to 5.00pm;
(e)On Y’s birthday, she shall spend time with the parent with whom she did not wake up that day:
(i)in the event that day is a school day, from conclusion of school to 6.00pm;
(ii)in the event that the day is a weekend or non-school day, from 9.00am to 1.00pm.
11.Commencing in 2023 and continuing to the conclusion of her secondary school education, Y attend C School.
Communication
12.When the children are in the care of the father, the father shall do all acts and things necessary to encourage and facilitate the children telephoning the mother as and when the children reasonably wish to do so.
13.When the children are in the care of the mother, the mother shall do all acts and things necessary to encourage and facilitate the children telephoning the father as and when the children reasonably wish to do so.
Changeover
14.Changeovers between the parents during the school Term shall occur at the child’s school.
15.That changeovers which do not occur at the children’s school shall occur at the Hungry Jack’s Suburb D.
Specific issues
16.The Mother is restrained by way of injunction from doing any of the following:
(a)discussing these proceedings with or in the presence or hearing of any child of the relationship;
(b)exposing the child/ren to any aspect of these proceedings;
(c)exposing the child/ren to her views of the father and calling the father by a name other than “[Mr Farella]”.
(d)denigrating or speaking ill of any party or any other person associated with these proceedings nor to expose the child to same and in the event that same does occur, to immediately remove the child from such circumstances;
(e)allowing any other person to speak ill of any party or other person connected with these proceedings, in the presence or hearing range of the child and in the event that same does occur, to immediately remove the child from such circumstances.
17.The Father is restrained by way of injunction from doing any of the following:
(a)discussing these proceedings in the presence or hearing range of the child nor with the child;
(b)exposing the child to any aspect of these proceedings;
(c)exposing the child/ren to his views of the mother and calling the mother by a name other than “[Ms Earnshaw]”;
(d)denigrating or speaking ill of any party or any other person associated with these proceedings nor to expose the child to same and in the event that same does occur, to immediately remove the child from such circumstances;
(e)allowing any other person to speak ill of any party or other person connected with these proceedings, in the presence or hearing range of the child and in the event that same does occur, to immediately remove the child from such circumstances.
18.That the mother and the father shall:
(a)Keep the other parent informed at all times of their residential address, email address, landline and mobile contact numbers;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children;
(c)Inform the other parent as soon as reasonably practicable of any serious medical conditions or serious injury suffered by the child.
19.The parents shall do all acts and things necessary to cause Y to be engaged with an appropriately qualified mental health professional to offer counselling to Y to assist her to navigate her family relationships and anything else which she wishes to discuss with said practitioner.
20.For the purpose of Clause 19 herein, within 28 days of the date of these orders the father shall take Y to her general practitioner and obtain a referral to an appropriately qualified mental health professional, and for the purpose of this order, the father have liberty to provide to the general practitioner a copy of the Family Reports of Ms E.
21.The father shall notify the mother of the name and contact information of the mental health professional to whom Y is referred upon being provided same by the general practitioner.
22.Any counselling or therapeutic intervention received by Y pursuant to these orders shall be strictly non-reportable and evidence shall not be adduced of such counselling in any future legal matters.
23.The parents be restrained and an injunction issue restraining them from initiating discussions with Y in relation to any counselling or mental health support she receives.
24.The parents shall communicate via a parenting communication application, with such application to be agreed between the parents and for the purpose of this order, within seven (7) days of the date of these orders each parent shall take all necessary steps to sign up/register with said app.
Authorities
25.The Mother and Father authorise, by this Order, any school attended by X and Y to provide to each of them all information/documentation sought by them in relation to X and Y’s respective welfare, progress and activities at school, from time to time, (at the requesting parent’s cost).
26.The Mother and the Father shall each be at liberty to contact the teachers and/or principal(s) and/or administrative staff of any school attended by X and Y, from time (by telephone, in writing or in person), in order to obtain the information/documentation referred to herein.
27.This Order shall be an authority directed to child/ren’s medical and treating health care practitioners to provide to the father and the mother, a copy of any medical or health information or records of the child/ren that they are able to provide pursuant to the law, with any costs to be borne by the parent requesting the information.
IT IS FURTHER ORDERED THAT:
28.The applicant and respondent shall file and serve written submissions by no later than 4.00pm on Friday, 16 December 2022 in relation to the consideration of whether or not it is necessary for leave to be granted pursuant to r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for the provision of:
(a)the family report, orders, and reasons for judgment to any health practitioner engaged by the parties to assist themselves, or a child or the children collectively, including any family therapist; and/or
(b)the orders to any school, extracurricular activity provider, medical or allied health provider who engage with the children from time to time.
NOTATION
A.The Court notes that paragraphs 1 to 8 and 10 to 27 of this Order are made with the consent of all parties, and paragraph 9 is made with the consent of the applicant and respondent with the independent children’s lawyer neither consenting nor opposing the terms of paragraph 9 herein.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J:
The parents, Ms Earnshaw and Mr Farella, were married in 1999 and separated in 2012. They are divorced and they have four children, two of whom are now adults.
I made trial directions in this matter in October 2022 and it was agreed at that time that the only two significant issues for my determination were:
(a)Whether the parties were capable of making joint decisions about major long term issues concerning two of their children – X, aged 16, and Y, aged 7; and
(b)What weight should be given to the views of X and Y?
The trial was to commence today but the parents have reached an agreement and signed a Minute of Order. The independent children’s lawyer (“ICL”) consents to all bar paragraph 9 and neither consents nor opposes that provision.
The two children the subject of the proceedings are X and Y, but the outcome is fortunate for all four children of these parents. The parents are no strangers to parenting disputes and had previously resolved parenting proceedings with a final order in 2015. Sadly, the conflict, which has been pointed out to the parties to be a source of considerable stress and damage for their children, continued and further litigation was commenced in June 2020.
The family report writer, Ms E, who has prepared two reports in this matter, suggested two options in relation to Y, it being common ground that whether or not X spends time with her mother should be a matter left in her hands after discussion with the mother. The two options relating to Y were: that she continue to live week about, as she has done effectively for all of her life; or that Y spend more time with the father and less time with the mother. The ICL submitted that given the parents have reached an agreement, there is really not an opportunity to tease those options out with cross examination of parties and experts.
It is certainly common ground that Y expressed her wish for the week about arrangement to continue but it was submitted by the ICL, given the observations of the family report writer, that Y may not feel free to express her actual wish but rather presented a position that she thought might minimise the conflict between her parents. What an indictment on her parents that an 11 year old might feel that she needs to take on such a burden. In any event, one can only hope that for the sake of their children, including the adult children, the parents can finally draw a line under their conflict and get on with their lives and enable their children to do the same.
The parents, to their credit, have reached agreement that X will live with her father and spend time with her mother in accordance with her wishes, and that the father will have sole parental responsibility for major long term issues for X and Y but he is to involve the mother in those decisions.
The parents have a chance to make a difference to their children’s lives going forward and one can only hope that they do so. They would be well advised to engage in some therapy to gain some insight into how their own conduct and decisions have adversely impacted on their children. The blame and recrimination, no matter how justified, will hopefully cease with the making of this order.
The provisions of the proposed order are, in my view, in the best interests of X and Y and I so order.
I direct that the minute of order remain with the Court papers.
I certify that the preceding (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 14 December 2022
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