Fagin & Burrough
[2022] FedCFamC2F 677
•7 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fagin & Burrough [2022] FedCFamC2F 677
File number: MLC 11521 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – final parenting orders – protracted proceedings – parents agree on most aspects in respect of care – past alcohol problem – dispute as to ongoing alcohol consumption while caring for the child – balance of risk and consequences – dispute as to passport – final orders determined by consent and on papers and submission. Legislation: Family Law Act 1975 (Cth). Cases cited: Deiter & Deiter [2011] FamCAFC 82 Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 7 April 2022 Place: Melbourne Counsel for the Applicant: Ms P. Villella Solicitor for the Applicant: Tonkin Legal Group Counsel for the Respondent: Mr N. Eidelson Solicitor for the Respondent: Sebastian Rubera & Associates Counsel for the Independent Children's Lawyer: Ms P. Treyvaud Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 11521 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FAGIN
Applicant
AND: MS BURROUGH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be and are hereby discharged.
Parental Responsibility:
2.The Mother ('the Mother') have sole parental responsibility for all health and education issues relating to X born in 2018 ('the child') and when the Mother is required to make a decision of a long-term nature, except for in an emergency, she shall:
(a)Provide the Father ('the Father') with 14 day's prior written notice by email of her intended decision;
(b)The Father be at liberty to respond to the Mother by email within 7 days of the written notice providing his comments and/or proposal with respect to the intended decision;
(c)The Mother shall give due consideration to the Father's comments prior to making the intended decision and advise the Father in writing of the outcome of the decision;
(d)In the event the Father fails to respond to the Mother, she is at liberty to make the intended decision without input by the Father and shall inform the Father of the outcome of the decision following the expiration of 14 days from the date of the written notice.
3.The parents have equal shared parental responsibility for long term decisions that are not health or education issues including but not limited to extra-curricular activities.
Live with and spend time arrangements:
4.The Child live with the Mother.
5.The Child spend time with the Father as follows:
(a)Each alternate weekend from Saturday 9:00am until the commencement of childcare on the following Monday or 10:00am if not attending childcare;
(b)Commencing January 1 2023, each alternate Friday from the conclusion of childcare or 3.30pm if the Child is not attending childcare until the commencement of childcare on the following Monday or 10:00am if not attending childcare;
(c)Commencing 1 January 2024,
(i)Each alternate Friday from the conclusion of kindergarten/school (or 3.30pm if a non school day) until the commencement of school on the following Monday (or 9:00am if a non school day);
(ii)Each alternate Wednesday from the conclusion of kindergarten/school or 3.30pm until 7.00pm for a dinner period.
(d)Commencing beginning of term 3 2025, as follows:
(i)In week one of a two-week cycle, on Friday from the conclusion of school or (3.30pm if not a school day) until the commencement of school on the following Monday (or 9:00am if not a school day); and
(ii)In week two of a two-week cycle, on Wednesday from the conclusion of school (or 3.30pm if not a school day) until the commencement of school on the Thursday (or 9:00am if non-school day).
(e)During all school holiday periods:
(i)Commencing term 1 school holidays 2024 for a period of four consecutive nights in a block period as agreed between the parties and in default of agreement, from 9.00am on the first Saturday of the holiday period until 10.00am on the following Wednesday;
(ii)Commencing term 1 school holidays 2025 for a period of five consecutive nights in a block period as agreed between the parties and in default of agreement, from 9.00am on the first Saturday of the holiday period until 10.00am on the following Thursday;
(iii)Commencing term 1 school holidays 2026 for half of all school term holidays as agreed between the parties, and in default of agreement, the first half from 9.00am on the first Saturday until 10.00am the middle Saturday;
(f)During the long summer holiday period:
(i)In 2024/2025, for three block periods of five consecutive nights as agreed between the parties;
(ii)In 2025/
20252026, for three block periods of six consecutive nights as agreed between the parties;(iii)Commencing 2026/2027, on a week about basis.
(g)On special occasions celebrated by the Applicant Father as agreed between the parties.
(h)Any other times as may be agreed between the parties in writing.
6.For the purposes of the child's time with the Father pursuant to Orders 5(c)(ii) such time shall take place within 10kms travel distance from the child's kindergarten/school.
7.The child's time with the Father pursuant to Orders 5(c) and (d) be suspended during all school term and long summer holiday periods commencing 2024.
8.At Christmas, the child shall spend time with the Father from 10.00am Boxing Day until 6.00pm 27 December, and with the Mother from midday Christmas Eve to 10.00am Boxing Day.
9.For Mother's Day, if the child is not otherwise living with the Mother, she shall spend time with the Mother from 5:00pm on the day preceding Mother's Day until the commencement of childcare or school on the Monday or 9.30 am if a non childcare/school day.
10.For Father's Day, if the child is not otherwise spending time with the Father, she shall spend time with the Father from 5:00pm on the day preceding Father's Day until the commencement of childcare or school on the Monday or 9.30 am if a non childcare/school day.
11.For the Mother's birthday and child's birthday, if the child is not otherwise living with her, at times to be agreed and in default of agreement, from the conclusion of school/childcare or otherwise 3:30pm until 6:30pm if it falls on a school day, and from 10:00am to 5:00pm if it falls on a non-school day.
Changeover:
12.All non childcare or school changeover shall occur as agreed between the parties in writing including text or email and failing agreement, it shall occur at C Shopping Mall, inside the entrance adjacent to D Bakery.
13.That the parents continue to attend upon their respective treating medical practitioners and clinical psychologists as they recommend and require and follow treatment recommendations.
Communication and exchange of information:
14.The Parents continue to use a parenting application to communicate in relation to matters impacting on the care, welfare and development of the child, save for in cases of medical emergency involving the child or either of them, in which case, the parents can telephone each other by telephone or mobile phone.
15.The Parents must notify each other of their respective, email and mobile number and notify each other within 24 hours of any changes.
Medical:
16.That the parents must inform the other parent as soon as practicable in the event that the child is involved in any serious accident or suffers from any serious illness which requires medical attention, and both parents are authorised to communicate and liaise with the treating medical professionals.
17.The Mother to advise the Father of all the child's treating medical practitioners (including allied health professionals) and the Father is authorised to communicate and liaise with the child's treating medical practitioners (and allied health professionals) in respect of matters concerning the child's attendance, health, diagnosis, prognosis and other information in relation to the treatment of the child.
18.This order authorises any treating medical practitioner or health practitioner to release the Child's medical and health information to the Mother and the Father.
Education and extra-curricular events:
19.That the Mother and the Father authorise by this order, the childcare centre, pre-school, school or any educational or extracurricular facility attended by the Child to give each parent information about the child's education or extracurricular progress and other related activities and supply them with copies of reports, notices, photographs, certificates and awards obtained by the child (at the requesting parent's costs).
20.That the Mother and the Father be at liberty to attend all school related events and extra-curricular activities that the child may be involved in from time to time and that parents are normally invited to attend, regardless of which parent's care the Child is in. In the event the Father intends on attending any school related events or extra-curricular activities he shall advise the Mother 24 hours prior to the event or activity.
21.The parents to provide a copy of these Orders to the child's childcare and the parties be at liberty to provide a copy of these Orders to any school at which the child attends in the future.
Nominated agents:
22.In the event that the Mother and the Father cannot undertake changeover as per these Orders, they be at liberty to nominate an agent to undertake changeover on their behalf, provided that such agent is known to the Child and that the parent has provided notice by text message through a parenting application to the other parent as soon as practicable.
Injunctions and Restraints:
23.That the Mother is restrained from moving the child's primary residence to a geographical location that is more than 45 minutes travel distance to the changeover location without written permission of the father in writing.
24.That the Mother, the Father, their servants and/or agents be hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or denigrating the other party or members of the other party's family;
(b)discussing these proceedings, contents of any documents used in these proceedings to, with or in the hearing of the child and permitting any other person to do so;
(c)Saying unpleasant or unkind things about the other party in the hearing of the child and will not permit any other person to do so;
(d)passing information or messages through the child to the other parent.
Independent Children's Lawyer:
25.The appointment of Independent Children's Lawyer be discharged.
THE COURT ORDERS THAT:
Alcohol:
26.The Father be restrained from consuming alcohol for 24 hours prior to or during his time with the child.
Passport and travel restraint
27.The Mother be at liberty to make application for and obtain an Australian Passport for the child X born in 2018, notwithstanding the Father does not consent to same being issued.
28.The said passport shall be held in the possession of the Mother.
29.The child be restrained from being removed from the Commonwealth of Australia without the written agreement of the parties or Order of the Court.
AND THE COURT NOTES THAT:
A.Pursuant to ss.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 Annexure A and these particulars are included in these orders.
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
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered immediately after the end of a final hearing. The parents had agreed to final orders for equal shared parental responsibility for 3 year old X (the child), for the child to live with her mother (the Mother) and spend substantial and significant time with her father (the Father). Notwithstanding agreement about those matters the parties were unable to sort out two issues themselves. Hence I must decide which parent will hold the passport of the child and what restrictions should be placed on the Father’s alcohol consumption when X is with him.
The Mother is aged 39 and the Father is aged 35. The parents lived together from 2016, they married in 2017, the child was born in 2018 and the parents separated in early 2020. The Father issued these proceedings in October 2020. After a number of court events including a contested hearing about interim orders, an appeal lodged and withdrawn, the matter was listed for final hearing on 7 April 2022. On that day the parties reached agreement about many orders concerning the child but needed the Court to determine the two remaining issues and requested I determine those issues on the papers and submissions.
The Mother sought, on the disputed issues, the following orders:
Alcohol
1.The father be restrained from consuming alcohol for 24 hours prior to or during his time with the said child
Passport and travel restraint
2.The Mother be at liberty to make application for and obtain an Australian Passport for the said child [X] born [in] 2018, notwithstanding the father does not consent to same being issued.
3.The said passport shall be held in the possession of the Mother.
4.The said child be restrained from being removed from the Commonwealth of Australia without the written agreement of the parties or Order of the Court.
The Father sought different orders as follows:
Overseas travel:
28.That, if requested to do so in writing by the other parent, the parents will do all acts and things and sign all such documents necessary to allow the issue of a passport in respect of the child.
29.Within fourteen days (14) of receiving the passport for the child, the Mother will provide the Father with a clear certified copy of the child’s passports.
30.The Mother and the Father be at liberty to travel overseas with the child for a period of no more than four (4) weeks during which time all other times the child are to spend with the non-travelling parent are to be suspended.
31. The travelling parent shall provide to the non-travelling parent:
(a)not less than 8 weeks prior to the intended departure, a detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel and details of accommodation for the entire period of travel (including, if applicable, the name of the accommodation, address, telephone number and email contact);
(b)not less than 4 weeks prior to the intended departure, a certified copy of the tickets in the traveling parent’s and the child’s name (either the hard copy tickets or a written confirmation of the tickets from the travel agent or airline) for the departure and return flights; and
(c)not less than 2 weeks prior to the intended departure, details of an email address or telephone number, where possible, on which the child can be contacted by the non-travelling parent during the trip.
32.That the travelling parent on travelling overseas with the Child must telephone or email the non-travelling parent in Australia:
(a) within 4 hours of arrival at the intended destination:
(b) twice a week during the period of the trip; and
(c) within 4 hours of arrival back in Australia.
33.The travelling parent provide to the non-travelling parent make-up time as soon as possible upon the Child’s return to Australia.
34.That in relation to overseas travel, the Mother and the Father are only permitted to travel with the children to countries which are signatories to The Hague Convention on the Civil Aspects of International Child Abduction.
Injunctions and Restraints:
…
36.The Father be restrained from consuming alcohol to excess prior to and during any period of time the child is in his care.
I will make the orders 1, 2, 3, and 4, as proposed by the Mother. My reasons are as follows.
I do not accept there is any evidence of any significant or real concern that either parent would leave Australia or not comply with existing orders. I have got two parents here who have strong ties to this jurisdiction, and particularly given the evidence of paragraphs 42 and 43 of the family report, and I do not accept that there is any real risk, even minor, of either parent acting inappropriately.
Should the parents not agree, they will have to come back to court. Implicit within the significant trust that each parent puts in the other by the orders that they consent to this day about the living arrangements, is a very significant trust in the other.
I take into account that since February the Father has permitted overseas travel of each of them when they chose, albeit in a slightly different context, and that is no longer his position. I am proceeding on the basis that he has a good reason to change his position, that is, a good reason to him. It was implicit in his previous proposals that the Mother would hold the passport, and implicit within that was that both parents needed to know about the travel arrangements eight weeks prior to effectively apply to Court. Now that has sensibly been taken down a notch, and it is implicit in both parents' proposals that they will have to reach agreement for either of them to travel overseas or else they will have to invest further in the Court process. But nonetheless, it was the Father's position for a not-insignificant period of time that the Mother hold the passport.
I am unpersuaded that the Mother gets to hold the passport because she has the child in her care for more days than the Father (as pressed by the Mother), notwithstanding that may happen frequently in other cases. I just cannot see how that follows. And I did consider that the Father should hold the passport, except there is no real risk here that anyone is going to shoot through with the child. I cannot make any findings about this, but I suspect this has fallen down around negotiations about details of proposed travel. In my view, it will assist the child’s welfare if there is already a passport in existence. The next time the matter is being considered, it may be the Father seeking overseas travel, or if not the next time, some other time. So I am going to make orders 2, 3, and 4 as sought by the Mother. I am making it on the basis that an airport watch list order is not sought by either parent, but I do not have any reason to find or suspect that the Mother will not follow a serious injunction of this Court.
The Alcohol Issue
Dealing with the alcohol issue, the reality is that there were very difficult circumstances in the past, including what appears to be common ground to have been a bitterly unhappy relationship. It cannot be taken that I am finding in these reasons that I accept one parent's version of that relationship or the other in this hearing. I do not because that has not been tested. Sensibly the parties have said to me that they are not going to leave it to me to try and work out what happened way back then and who said what and who was worse than the other one and so on. What is clear is that at a time, in very difficult circumstances, the Father did have a significant alcohol problem. I regard one to two bottles of spirits a week as an alcohol problem. It would appear Dr H, and the family report writer, and indeed the Father himself would regard consumption of that much as an alcohol problem. It is a lot of alcohol.
So there has been that very heavy use of alcohol in the past. The risk of the Father reverting to that is low, but it is not nil. The relevant case law is Deiter & Deiter [2011] FamCAFC 82, at paragraph 61, which states: -
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements. The first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested and the last submission made. We accept, however, that is always a question of degree, depending on the evidence that is before the Court.
Applying that test in terms of those two elements: the first requires prediction of the likelihood of the occurrence. I find that the likelihood is low, but not nil. Second is the consideration of the severity of the impact caused by those events. Despite it only having a low likelihood, if the Father was to succumb to heavy alcohol abuse or use again whilst he has the child in his care, that would impact very significantly on the child’s welfare.
A further matter that I want to take into account, is the impact upon the Father of getting on about his life. The Father has now, for some time, not consumed alcohol at all while the child is with him. I accept the ubiquitous consumption of alcohol in a family setting is a reality, for example asking “Will you have a glass of wine?” at the dinner table and so on. However, not everyone drinks, and not everyone drinks when they have the care of a child. Many people do not drink at all, or when they have the care of a child. Given that the Father currently does not have an alcohol problem, there is a personal inconvenience and, indeed, potential humiliation if he has to refuse in those circumstances. For example, when someone says, “Oh, come on, have a beer,” and he says, “Oh, no, no, I cannot. I do not drink when I have the child.” That might be embarrassing. Someone may say, “Well, why? It won’t hurt you,” and so on. We can all imagine that sort of stuff. The Father might have to say, “Well, it is a court order, and it is embarrassing for me to have to tell you that.” Or he might just choose not to answer the busybody inquirer.
However, the child is important. The Father has made substantial investment in therapy with Ms L, seeing Mr E, and undertaking the POP and Tuning In To Kids programmes. He has participated in these proceedings. He has put an enormous investment into building his relationship with the child, and he has done so successfully. He has done so without alcohol. He is devoted to the child. There has been the potential embarrassment or difficulty of not consuming any alcohol when with the child, but I find the Father has dealt with this successfully.
I also take into account the issue of the anxiety of the Mother. I place less or only a little weight on that. I do not think it is appropriate that either parent can now dictate to the other one matters controlling the other’s behaviour, based on their own anxieties, however well founded that may have been in the past.
Balancing all of those matters, I will make the order as sought by the Mother because, mainly, the potential risk to the child is of great consequence, even though the risk is low. I have no doubt that the Father can cope more than adequately without consuming any alcohol for 24 hours prior or during his time with the child, and I suspect he will not even miss it.
Thank you. They are my reasons and ruling on those issues.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 26 May 2022
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