FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELBERSON & BEARDALL | [2020] FCCA 2392 |
| Catchwords: FAMILY LAW – Parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Lansa & Clovelly [2010] FamCA 80 L & T [1999] FamCA 1699 |
| Applicant: | MR ELBERSON |
| Respondent: | MS BEARDALL |
| File Number: | PAC 5954 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 25, 26 and 27 May 2020 |
| Date of Last Submission: | 27 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 8 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Strik of Counsel |
| Solicitors for the Respondent: | Mr Seeney - King & York Lawyers |
| Counsel for the Independent Children’s Lawyer | Ms Abdelraheem of Counsel |
| Solicitors for the Independent Children’s Lawyer | Claremont Legal |
ORDERS
The parties shall have equal shared parental responsibility for all long-term major decisions associated with the care, welfare and development of the children X born in 2008, and Y born in 2010 (the children).
The children shall spend time with the Mother as follows:
(a)For the next 3 months, on each fortnightly Saturday for at least 2 hours supervised by the B Contact Service (the contact service) at times and dates to be offered by the contact service;
(b)Thereafter for 3 months, on each fortnightly Sunday from 12pm to 5pm;
(c)Thereafter for 3 months, fortnightly from 9am Saturday to 5pm Sunday;
(d)Thereafter, fortnightly from after school or 3pm Friday to 5pm Sunday;
(e)Such other time as the parties may agree.
Should the Mother move to within a 10km radius of the children’s respective schools then, after spending time with the children pursuant to Order 2 (a), (b), and (c) above and for at least 3 months pursuant to (d) above, the children spend time with the Mother:
(a)For 12 months, fortnightly from after school or 3pm Friday to before school or 9am Monday;
(b)Thereafter, fortnightly from after school or 3pm Thursday to before school or 9am Monday;
(c)Such other time as the parties may agree.
The children shall spend time with the Mother, during school holidays, in the absence of agreement:
(a)During the short school holidays, commencing with the Term 1, 2022 school holidays, the children shall spend equal time with each parent as agreed between the parties and, failing agreement, as follows:
(i)the children shall spend time with the Father for the first half and with the Mother for the second half.
(b)During the long summer NSW school holidays, the children shall spend time with each parent as follows:
(i)Commencing December 2022 and each even numbered year thereafter with the Mother for the first half and with the Father for the second half.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with their Father from 9.00am to 5.00pm on Father’s Day, unless they are already in his care.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with…
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- Elberson and Beardall [2020] FCCA 2392
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- [2020] FCCA 2392
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CaseChat Overview and Summary
The court was required to determine the best interests of the children in relation to their living arrangements, parental responsibility, and communication. Specific issues included the division of time between the parents, arrangements for school holidays and birthdays, and provisions for communication between the children and each parent. The court also addressed matters concerning the father's responsibility for school enrolment and travel, as well as the mother's compliance with drug testing and psychological counselling.
Judge Newbrun made detailed orders aimed at promoting the children's welfare and development. These included orders for equal shared parental responsibility for long-term decisions, a phased-in increase in the mother's time with the children, and specific arrangements for school holidays and birthdays. The court also imposed restrictions on drug and alcohol consumption by the parents when the children are in their care, and mandated participation in parenting programs and psychological assessments for the mother. The Independent Children's Lawyer was to remain appointed for 12 months to oversee the implementation of these orders.
Orders
Orders of the court
1.
The parties shall have equal shared parental responsibility for all long-term major decisions associated with the care, welfare and development of the children X born in 2008, and Y born in 2010 (the children).
2.
The children shall spend time with the Mother as follows:
(a) For the next 3 months, on each fortnightly Saturday for at least 2 hours supervised by the B Contact Service (the contact service) at times and dates to be offered by the contact service;
(b) Thereafter for 3 months, on each fortnightly Sunday from 12pm to 5pm;
(c) Thereafter for 3 months, fortnightly from 9am Saturday to 5pm Sunday;
(d) Thereafter, fortnightly from after school or 3pm Friday to 5pm Sunday;
(e) Such other time as the parties may agree.
3.
Should the Mother move to within a 10km radius of the children’s respective schools then, after spending time with the children pursuant to Order 2 (a), (b), and (c) above and for at least 3 months pursuant to (d) above, the children spend time with the Mother:
(a) For 12 months, fortnightly from after school or 3pm Friday to before school or 9am Monday;
(b) Thereafter, fortnightly from after school or 3pm Thursday to before school or 9am Monday;
(c) Such other time as the parties may agree.
4.
The children shall spend time with the Mother, during school holidays, in the absence of agreement:
(a) During the short school holidays, commencing with the Term 1, 2022 school holidays, the children shall spend equal time with each parent as agreed between the parties and, failing agreement, as follows:
(i) the children shall spend time with the Father for the first half and with the Mother for the second half.
(b) During the long summer NSW school holidays, the children shall spend time with each parent as follows:
(i) Commencing December 2022 and each even numbered year thereafter with the Mother for the first half and with the Father for the second half.
5.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with their Father from 9.00am to 5.00pm on Father’s Day, unless they are already in his care.
6.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with their Mother from 9.00am to 5.00pm on Mother’s Day, unless they are already in her care.
7.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties, the children shall spend time with the non-resident parent on each of their respective birthdays as follows:
(a) During non-school days: From 11:00AM until 4:00PM.
(b) During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
8.
Notwithstanding anything else contained within these Orders and unless otherwise agreed between the parties, the children shall spend time with the Mother on the Mother’s birthday (unless already in the Mother’s care) for a minimum of five (5) hours at a time as agreed between the parties and, in default of agreement, as follows:
(a) During non-school days: From 11:00AM until 4:00PM.
(b) During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
9.
Notwithstanding anything else contained within these Orders and unless otherwise agreed between the parties, the children shall spend time with the Father on the Father’s birthday (unless already in the Father’s care) for a minimum of five (5) hours at a time as agreed between the parties and, in default of agreement, as follows:
(a) During non-school days: From 11:00AM until 4:00PM.
(b) During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
10.
For Christmas 2020, the children shall spend time with the mother for at least 3 hours on any one of Christmas Eve, Christmas Day, or Boxing Day, at the selection of the mother, and provided the mother informs the father of her selection at least 14 days prior to such days. In the absence of agreement between the parties, such 3 hour period (or longer period if agreed between the parties) shall occur between 3 PM and 6 PM.
11.
For Christmas 2021, and Christmas periods thereafter, the children shall spend time with the mother from 12 PM Christmas Eve until 12 PM Christmas Day in odd numbered years and from 12 PM Christmas Day until 12 PM Boxing Day in even numbered years.
12.
Changeover shall occur at locations as agreed between the parties, and in default of agreement, changeover shall occur as follows:
(a) On school days:
The parent with whom the children are to spend time will collect the children from their respective schools. If a parent’s time concludes outside of school hours, changeover shall otherwise occur at Suburb C Train Station.
(b) On non-school days:
The parent with whom the children are to spend time shall collect the children from Suburb C Train Station.
13.
That the children may communicate with each parent at such time as the children so wish and the other party shall facilitate and encourage such communication by telephone, in writing or by other electronic means including, but not limited to, e-mail, Skype or FaceTime.
14.
For the purposes of the above Order, each parent shall facilitate such communication by ensuring that the children are available to talk to the other with privacy and without interference.
15.
Each party is hereby permitted to attend any school event or function to which parents normally attend including, but not limited to, the first day of school, open days, parent/teacher interviews, parent days, assemblies, concerts and the like even when the children are not in his/her care.
16.
Each party is entitled to attend all extra-curricular events involving the children including sporting, music performances, eisteddfods and all other extra-curricular fixtures and performances, and the parent who has the child in their care of the day of such activity will be responsible for the child’s day to day care at such event and the child’s transportation to and from that event.
17.
Each parent is restrained from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.
18.
That the Father be permitted to enrol the children at D School and E High School.
19.
That each parent keep the other parent informed of:
(a) Their residential address, an email address and a contact telephone number;
(b) The details of any other person residing in the same house as the children;
(c) Any significant injury or illness suffered by the children, or either of them, and details of all subsequent medical treatment given to the children, or either of them; and
(d) The schools the children are attending and any extra-curricular activities in which the children are involved.
20.
That each parent be permitted to communicate with the children's schools and to request and receive copies of all school reports, notices, newsletters, bulletins, applications for school photographs and other correspondence from the children's schools.
21.
That the Father be permitted to provide the Principals of the children's schools with a copy of these Orders within 28 days of the date of the Orders and will authorise the Principals to facilitate these Orders.
22.
That Father be permitted to travel outside the Commonwealth of Suburb D with the children provided that the Father provide to the Mother no less than 28 days' notice of any intended overseas travel.
23.
That the Father have sole responsibility for giving consent and making arrangements for the issue of Suburb D passports in the names of the children.
24.
The Father shall, within 6 weeks, enrol in and thereafter complete either the Tuning into Kids, or Tuning into Teens course.
25.
The parents shall, within 21 days, enrol in and thereafter complete a Parenting Orders Program, such as the Keeping Contact course.
26.
The ICL shall be permitted to request 2 hair follicle tests of the Mother over a period of six months from the date of these Orders. Following each request the Mother shall submit herself for hair testing and provide such hair samples as directed by The Drug Detection Agency for the purposes of analysis of drug use in relation to non-prescription drugs including but not limited to:
(a) Methadone Metabolite,
(b) Opiates,
(c) Amphetamine type substances,
(d) Benzodiazepines,
(e) Cannabinoids,
(f) Cocaine Metabolite,
(g) Crystal Methamphetamines,
(h) Barbiturates,
(i) Buprenorphine, and;
(j) Tetrahydrocannabinol
27.
The ICL shall have liberty to relist the proceedings on 7 days’ notice should any hair follicle test of the Mother be returned positive for illicit drugs.
28.
That within 14 days from the date of the making of these orders, the Mother is to attend upon a psychologist with experience in drug addiction counselling, as approved by the ICL, and comply with the following;
(a) The Mother is to attend all appointments as scheduled by the psychologist;
(b) The Mother is to follow all recommendations given by the psychologist;
(c) The Mother is to provide correspondence from the Psychologist to the ICL and to the Father’s solicitor stating compliance with orders (a) and (b) above within 3 months; and
(d) The Mother is to be granted leave to provide a copy of the family report of Ms F dated 15 May 2019 and child inclusive conference memorandum dated 12 February 2020 to her psychologist.
29.
The parents shall be restrained from consuming any illegal drugs 24 hours prior to and during the children being in their care.
30.
The Mother shall immediately remove the children from the presence of any persons she perceives to be affected by or consuming illegal drugs.
31.
The parents shall be restrained from consuming any alcohol above the legal driving limit of 0.05 when the children are in their care.
32.
The Mother be restrained from allowing any person who is using or is affected by illicit drugs to be present and/or to reside in her residential premises, during times that she has the children in her care.
33.
The ICL shall remain appointed for a period of 12 months from the date of these orders.
34.
Leave to the ICL to relist the proceedings on 7 days notice in the event of any significant difficulty arising relating to the implementation of the above 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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