FAMILY COURT OF AUSTRALIA
| FARNHAM & DELUCA | [2018] FamCA 548 |
| FAMILY LAW – CHILDREN – FAMILY VIOLENCE – UNACCEPTABLE RISK – Where there exists a high level of conflict between the parents – Where there are allegations of family violence made by each parent against the other – Where the mother seeks that the father spend only supervised time with the children – Consideration of whether the father engaged in coercive and controlling behaviour during the cohabitation –Definition of “unacceptable risk” – Consideration of whether such behaviour as found by the Court poses an unacceptable risk to the children such that they should only spend recognition time with the father – Orders made for the father to spend unsupervised time with the children in a graduating arrangement culminating in alternate weekends and half of school holidays – Orders made in relation to communication, changeovers, airport watchlist and provision of contact details to the other parent. |
| Evidence Act 1900 (NSW) ss 128, 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 65DAA Family Law Rules 2004 (Cth) |
| B and B (1993) FLC 92-357 “Unacceptable risk – A return to basics” (2006) 20 AJFL 249 |
| APPLICANT: | Mr Farnham |
| RESPONDENT: | Ms DeLuca |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | SYC | 5417 | of | 2013 |
| DATE DELIVERED: | 22 June 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATES: | 27, 28, 29 and 30 November 2017 1 December 2017 19, 20, 21, 23 and 27 February 2018 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Saw |
| SOLICITOR FOR THE RESPONDENT: | Kyle Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Ladopoulos |
| INDEPENDENT CHILDREN’S LAWYER | Robertson Solicitors |
Orders
IT IS ORDERED THAT:
All prior orders made herein are discharged.
PARENTAL RESPONSIBILITY
The mother have sole parental responsibility for the children X born ... 2009 (“X”) and C born ... 2013 (“C”) (collectively referred to as “the children”).
Whenever the mother proposes to make a decision about a long term welfare issue for either child, before making any such decision:
(a)the mother is to notify the father of the matter she is considering and what her proposal is and must give the father 14 days to respond;
(b)Provided the father responds with his views about any such proposal within 14 days of being requested to do so, the mother is to take into account what those views are when she makes her final decision on that matter.
Upon the mother making a final decision on the relevant long term welfare issue, the mother is to forthwith notify the father of her decision before implementing same.
For the purpose of Order 3, a “long term welfare issue” for these children will include (but is not limited to) the following:
(a)Change of school;
(b)Any elective surgery or…
Continue reading Farnham and DeLuca
Sign in free to access the full text
- AGLC
- Farnham and DeLuca [2018] FamCA 548
- Case
- [2018] FamCA 548
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific orders concerning parental responsibility, including who would have sole responsibility for long-term welfare decisions. It also needed to establish detailed arrangements for when the children would live with each parent, including specific schedules for spending time with the father, and provisions for communication between the parents and with the children. Further issues included the exchange of health and educational information, contact details, and restrictions on the removal of the children from Australia.
Le Poer Trench J made orders discharging all prior orders. The mother was granted sole parental responsibility for the children, with specific provisions requiring her to notify the father of proposed long-term welfare decisions and to consider his views before making a final decision. The children were ordered to live with the mother, and detailed schedules were set out for the children to spend time with the father, including provisions for school holidays and specific days such as Father's Day and Christmas. The orders also stipulated communication protocols between the parents and with the children, including requirements for notification of medical and educational information, and restrictions on denigrating the other parent in the children's presence. The children were to be known by the surname DeLuca-Farnham, and orders were made to prevent their removal from Australia, with their names to be placed on the Airport Watch List.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
All prior orders made herein are discharged.
PARENTAL RESPONSIBILITY
2.
The mother have sole parental responsibility for the children X born ... 2009 (“X”) and C born ... 2013 (“C”) (collectively referred to as “the children”).
3.
Whenever the mother proposes to make a decision about a long term welfare issue for either child, before making any such decision:
(a) the mother is to notify the father of the matter she is considering and what her proposal is and must give the father 14 days to respond;
(b) Provided the father responds with his views about any such proposal within 14 days of being requested to do so, the mother is to take into account what those views are when she makes her final decision on that matter.
4.
Upon the mother making a final decision on the relevant long term welfare issue, the mother is to forthwith notify the father of her decision before implementing same.
5.
For the purpose of Order 3, a “long term welfare issue” for these children will include (but is not limited to) the following:
(a) Change of school;
(b) Any elective surgery or medical procedure; and
(c) Change of residential address.
6.
For the purpose of Orders 3, 4 and 5 hereof, the communication required by those Orders is to be conveyed by each party to the other’s email address.
LIVE WITH
7.
The children are to live with the mother.
SPEND TIME WITH
8.
The children are to spend time with the father as follows:
(a) from the date of these orders until the commencement of Term 2 of the 2019 school year, each weekend from after school on Friday (or 3:15 p.m. if not a school day) until 6:00 p.m. on Saturday. This order to continue during school holiday periods in this time frame;
(b) Commencing on the first weekend of Term 2 of the 2019 school year until the commencement of Term 4 of the 2019 school year:
(i) each alternate weekend from after school on Friday (or 3:15 p.m. if not a school day) until 6:00 p.m. on Sunday; and
(ii) one overnight from after school (or pre-school) on Thursday until school time on Friday in the week the children will not be with the father on the weekend;
(iii) This order to continue during school holiday periods in this time frame.
(c) Commencing on the first weekend of Term 4 of the 2019 school year until the commencement of Term 1 of the 2020 school year:
(i) each alternate weekend from after school on Friday (or 3:15 p.m. if not a school day) until before school on Monday (or 9:00 a.m. if not a school day); and
(ii) one overnight from after school (or pre-school) on Thursday until school time on the next day in the week the children will not be with the father on the following weekend;
(iii) during the New South Wales school holiday periods at the end of Terms 1, 2 and 3, from after school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
(iv) during the New South Wales Christmas school holiday periods at the end of Term 4 of the 2020 school year:
(1) from 10:00 a.m. on 2 January until 6:00 p.m. on 9 January; and
(2) from 10:00 a.m. on 19 January until 6:00 p.m. on 26 January.
(d) From the commencement of Term 1 of the 2021 school year, as follows:
(i) during the school term (commencing on the first weekend of each school term):
a. each alternate weekend from after school on Friday (or, if the Friday is not a school day, from after school on the Thursday) until before school on Monday (or, if the Monday is not a school day, until before school on the Tuesday); and
b. one overnight from after school on Thursday until school time on the next day in the week the children will not be with the father on the weekend;
(i) during the New South Wales school holiday periods at the end of Terms 1, 2 and 3, for the first half;
(ii) during the New South Wales Christmas school holiday periods at the end of Terms 4:
a. where the school holiday period commences in a year ending in an odd number (eg. 2021), from 10:00 a.m. on the first day after the end of Term 4 until 6:00 p.m. on 8 January; and
b. where the school holiday period commences in a year ending in an even number (eg. 2022), from 6:00 p.m. on 8 January until 6:00 p.m. on 26 January.
9.
The children are to spend additional time with the father as follows:
(a) on the Fathers’ Day weekend from 9:00 a.m. on Sunday until before school on Monday (or, if the Monday is not a school day, until 9:00 am on the Monday);
(b) at Christmas:
(i) from 6:00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day in odd numbered years; and
(ii) from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day in even numbered years;
(c) such other times as the mother and the father may agree to in writing.
10.
That the children's time with the father pursuant to other orders herein shall be suspended on:
(a) each Mothers’ Day weekend, from 9:00 a.m. on Sunday until before school on Monday (or, if the Monday is not a school day, until 9:00 am on the Monday); and
(b) at Christmas:
(i) from 6:00 p.m. on Christmas Eve until 2:00 pm on Christmas Day in even numbered years; and
(ii) from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day in odd numbered years;
and the children shall be returned to the care of the mother between those times.
11.
The Court notes that the father has informed the Court on 23 February 2017 that his residential address is K Street, Suburb L and that the address is the place at which the children will normally reside with him during the time they spend overnight time with him pursuant to these Orders. Should the father propose, on any occasion, during the time they are spending time with him pursuant to these Orders, for the children to spend overnight time at an address other than the address specified herein or any subsequent address he has notified the mother is to be his usual residential address, he is to notify her by email of the address at which the children will stay on that occasion. Such notice to be given 48 hours before any particular spend time period.
12.
For the purpose of these Orders, unless otherwise agreed between the father and the mother in writing (which can be by way of email or SMS), changeovers shall occur as follows:
(a) for changeovers that occur at the end of the school day, the father shall collect the children from their respective school(s), pre-school or day‑care centre (or, if C is not attending school, pre-school or day‑care, from X’s school) at the conclusion of the school day;
(b) for changeovers which occur at the start of a school day, the father shall deliver the children to their respective school(s), preschool or day-care centre (or, if C is not attending school, pre-school or day-care, to X’s school) in time for the commencement of the school day;
(c) for changeovers which occur at other times:
(i) the mother shall ensure that the children are delivered to the father at the Suburb B Police Station at the commencement of the time they are to spend with the father; and
(ii) the father shall ensure that the children are delivered to the mother or her nominated representative at the Suburb B Police Station at the conclusion of the time they are spending with him.
(d) The mother may nominate a person to collect the children from and deliver the children to the father, as required by these orders. The mother is to ensure the detail including method of identification of the nominated person is provided by her to the officer in charge of the Suburb B Police Station before the nominated person attends for changeover of care of the children on behalf of the mother.
COMMUNICATE WITH
13.
The father is to ensure, as far as is possible, that the children communicate with the mother by telephone for some time between 7:30 p.m. and 8:00 p.m. every Wednesday they are in his care. The mother is to call the children on their mobile phone(s) and the father is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the mother’s call.
14.
When the children commence spending alternate weekend time with the father, the mother is to ensure, as far as is possible, that the children are available to receive a telephone call from their father on the alternate Friday when they will not be in his care, such calls to be made between 7.30 p.m. and 8.00 p.m. The mother is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the father’s call.
AUTHORISATIONS AND PROVISION OF INFORMATION
HEALTH
15.
The mother shall:
(a) provide the father with and keep him advised of the names and addresses of the children’s general medical practitioners, specialist medical practitioners, dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("doctors and specialist consultants"); and
(b) ensure that the father is provided with a copy of any report by any such doctor or specialist consultant in relation to the children, within seven days of the mother’s receipt of the report.
16.
Otherwise than as provided for herein both the father and mother shall be entitled to discuss issues concerning the children’s health with the children’s medical providers and professionals or specialist consultants.
17.
The mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a) either of the children is admitted to hospital;
(b) either of the children is involved in a medical emergency; or
(c) either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father where that medication has been obtained by her with a prescription provided by a medical practitioner.
18.
The father is to cause the mother to be notified as soon as practicable if, while in his care:
(a) either of the children is admitted to hospital;
(b) either of the children is involved in a medical emergency; or
(c) either of the children will be required to take medication when they return to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care where that medication has been obtained by her with a prescription provided by a medical practitioner.
19.
The mother is to ensure that:
(a) the children are, at all times, immunised in accordance with the Australian Government National Immunisation Program Schedule (“the Schedule”); and
(b) provide the father with a copy of documentary evidence of the children having been vaccinated in accordance with the Schedule, such evidence to be provided to the father within fourteen (14) days of any such vaccination.
EDUCATION
20.
The mother is to notify the father, and keep him informed in the case of any change, of the name and contact details of any school, pre-school or day-care centre that the children are enrolled in, such notification to be made in writing and within seven (7) days of any such enrolment.
21.
The mother is to forthwith authorise any school, pre-school or day-care centre, which the children are attending from time to time, to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the children.
22.
Each parent is to use their best endeavours to ensure each of them is permitted to attend any school, pre-school, day-care centre or extra-curricular presentation or performance which either of the children are participating in and to which parents are ordinarily invited.
CONTACT DETAILS
23.
The mother and the father notify each other of:
(a) a current telephone contact number and email address, such notification to be made in writing and within three (3) days of the date of these Orders; and
(b) any change in telephone contact number or email address, such notification to be made in writing and within three (3) days of any change.
24.
As a general rule each party is to restrict communication with the other to a minimum. Neither the mother nor the father are to telephone the other unless there is an absolute requirement that they communicate by telephone because of some imminent circumstance which will adversely impact upon the welfare or wellbeing of either of the children if that means of communication is not used. All communication is to be restricted to emails wherever possible and text messaging if the urgency of the situation dictates it to be required.
25.
Whenever the parents do communicate with each other, by whatever means, they are to conduct such communication in a civil, respectful and non‑threatening manner.
26.
Should either party hereafter change the circumstances surrounding the presence of other persons who reside in the same residence as themselves where that person or persons are reasonably anticipated to interact with the children when the children are in the care of that party, the other party is to be forthwith provided with the names, ages and relationship, if any, to the party with whom they are or will reside.
RESTRAINTS AND INJUNCTIONS
27.
The mother and the father are each restrained from:
(a) discussing these proceedings, any orders made as set out herein or the reasons given for the making of these orders, in the hearing of or presence of the children;
(b) speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(c) causing or allowing any other person:
(i) discussing these proceedings in the hearing of or presence of the children;
(ii) speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
OTHER
28.
Each of the parents is to ensure the children are known by the surname DeLuca-Farnham and each is to cause school records and other records holding the children's names, including birth certificates, to be amended accordingly.
29.
In the event that the children or either of them is unable to attend upon time with the father because of illness the father is to nominate a makeup time (not so that it runs consecutively with another time the children are to spend with him) to the mother and the mother is to cause the children to spend that time with him.
30.
Should the mother decide that either child is too ill to attend upon time with the father she is to provide to the father within 48 hours of any such occasion a scanned copy of a medical certificate obtained to show that illness and that the child is medically unfit to spend time with the father.
31.
As and from the commencement of Term 1 of 2020 school year, in the event of the mother being unable to personally care for the children overnight then she is to offer the father the first opportunity to do so before she arranges any other care for the children.
32.
That appointment of the Independent Children’s Lawyer be discharged.
33.
The mother is to use her best endeavours to have the children attend upon confidential counselling to assist them with the implementation of these orders. If such counselling is available to the children, the mother is permitted to provide the counsellor with a copy of these orders and a copy of the judgment. The counselling is not to be with the same person or organisation the mother attends upon for domestic violence counselling.
34.
Neither party is to remove either child from Australia without the written consent of the other and a consent order presented to the Court to suspend or remove the airport watch list order made below.
35.
That until ... 2027, the children X, (also known by the surname DeLuca-Farnham) born ... 2009 (a female) AND/OR C (also known by the surname DeLuca-Farnham) born ... 2013 is not to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order. Further it is ordered that the names of the said children be placed upon the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
36.
All outstanding parenting applications are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.