FOOTE & WICKS (No.2)

[2018] FCCA 3993

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOOTE & WICKS (No.2) [2018] FCCA 3993

Catchwords:
FAMILY LAW – Parenting proceedings – final undefended hearing as against the applicant – orders made by consent between the respondent and Independent Children’s Lawyer.

Applicant: MR FOOTE

Respondent: MS WICKS

File Number: PAC 3888 of 2017

Judgment of: Judge Obradovic

Hearing date: 9 August 2018

Date of Last Submission: 9 August 2018

Delivered at: Parramatta

Delivered on: 9 August 2018

REPRESENTATION

Appearing for the Applicant: No appearance

Counsel for the Respondent: Ms Hamilton

Solicitors for the Respondent:	Coode & Corry
Appearing for the Independent Children’s Lawyer	Mr Samuel
Solicitors for the Independent Children’s Lawyer	Brian Samuel & Associates

ORDERS

1. Orders are made in accordance with the Terms of Settlement signed by the Independent Children’s Lawyer and the mother, initialled and dated by the Court today, placed on the Court file as attached hereto.

2. The solicitor for the Respondent is directed to provide a typescript of the Terms of Settlement made today in word format directly to my Associate by email within 7 days of today’s date.

3. Remove all outstanding issues from the list of cases awaiting finalisation.

TERMS OF SETTLEMENT

1. That all previous parenting orders between the parties be discharged.

2. That the parties have equal shared parental responsibility in respect to all long term issues in respect to the child [X] born … 2005.

3. That the child live with the Mother.

4. That the child spend time with the Father as follows:-

   (a)During school terms each alternative weekend from the conclusion of school on Friday until 5.00pm on Sunday and each Thursday from the conclusion of school until 7.30pm.

   (b)For half of each NSW school holiday period at dates and times as agreed to by the parties and in the absence of such agreement as follows:-

   (i)for the second half of each short school holiday period commencing on the middle Saturday of the school holidays and ending at 5pm on the last Friday of the school holidays.

   (ii)for the first half of the summer school holidays in odd years and the second half in even years.

   (c)Notwithstanding any other order in odd years the mother shall spend time with the child from 10am on 26 December until 10am on 28 December.

   (d)Notwithstanding any other order in even years the father shall spend time with the child from 10am on 26 December until 10am on 28 December.

   (e)At such other times and dates and for such other periods as agreed to by the parties.

5. Unless the parties shall otherwise agree all changeovers are to take place at the Caltex Service Station, Highway B, Town C.

6. That the parties each have reasonable telephone communications with the child during any periods that the child is otherwise living with or spending time with the other parent pursuant to these orders and the parents are to each facilitate such telephone communications.

7. That WITHOUT ADMISSION BOTH parties be restrained from:

   (a)Exposing the child to threats or violence including physical or verbal threats or intimidation, whether such violence or threats or intimidation be directed at the child, the Mother, the Father, or any member of either party’s household.

   (b)Denigrating the other or members of the other party's family in the presence or hearing of the child and each party shall do all acts and things reasonably necessary to prevent any other person doing so;

   (c)Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so;

   (d)Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings;

   (e)Being under the influence of alcohol to an extent which would prohibit them from driving a car due to having a blood alcohol content level higher than the legally-prescribed amount for New South Wales in the presence of the child or whilst the child is in his or her care;

   (f)Using, ingesting or administering to himself or herself any illicit or non­prescribed drugs (other than over the counter medication); and

   (g)Bringing the child into contact with any person under the influence of illicit drugs or alcohol in excess.

8. That the mother and father ensure that the child attend school on each and every school day during any periods that the child is in such parent's care pursuant to these Orders and IT IS NOTED that the child currently attends School G.

9. In the event that the child is sick and unable to attend school the parent in whose care the child is in shall provide a medical certificate for such child to the child's school and to the other parent.

10. That each party is to forthwith notify the other of any significant illness, physical injury or medical condition suffered by the child or as soon as practicable in the case of an emergency.

11. That the parties ensure that the child continue to engage with the following service providers:-

    (a)NDIS;

    (b)The … Foundation (Centre for Autism).

    (c)… Youth Services Team;

    (d)… speech and occupational therapy as recommended by that service;

    (e)Regular paediatric reviews as recommended by [X]’s treating medical health professionals;

    (f)Regular psychiatric reviews and check-ups with the child's treating psychiatrist namely Dr K.

    (g)Such other professional health services as recommended by the child's medical team.

12. That the parties keep each other advised as to their respective residence and contact details.

13. In the event that either party seeks to travel with the child on an overseas holiday, they are to provide the other party with reasonable notice (at least 28 days), a detailed itinerary, contact details whilst overseas and return air tickets for such party and the child during periods when the child would otherwise be living or spending time with such parent and neither party is to unreasonably withhold consent to such travel.

14. That the parties will each encourage and foster the child's relationship with the other parent and other members of their respective households and extended families.

15. Pursuant to s.65(0) and s.62.B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Foote & Wicks (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3888 of 2017

MR FOOTE

Applicant

And

MS WICKS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. These are final parenting proceedings in relation to the only child of the parties, [X], who was born on … 2015 and who is 13 years of age at the time of this undefended hearing.  The proceedings are today listed for an undefended hearing as against the applicant father who discontinued his Initiating Application by way of a Notice of Discontinuance filed on 7 February 2018.  The Court has been provided with Terms of Settlement between the Independent Children’s Lawyer and the respondent mother, who are the only two remaining parties in the proceedings. 

2. The Court has had regard to the case outline documents prepared and filed on behalf of the Independent Children’s Lawyer and the respondent mother and also the evidence which is read in support of the orders which are sought by consent as referred to in those case outline documents.

Chronology

1. The father was born on … 1966.

2. The mother was born on … 1967.

3. The parties met in 2001, and subsequently lived together.

4. The parties’ only child [X] was born on … 2005.

5. On 23 November 2006, First Final Orders were made by consent, which provided for [X] to live with the mother and to spend time with the father five nights per fortnight and for half of each school holiday period.

6. In September 2009, [X] was diagnosed with Autism Spectrum Disorder.

7. On 5 March 2010, Ms L, speech pathologist, provided a report which opined that [X] “presents with expressive language delay, mild articulation delay and pragmatic delay/disorder.”

8. In early August 2010, [X] was selected for inclusion in Kids on the Move project which assists children with high support transition to a mainstream kindergarten.

9. [X] commenced attendance at School M in 2011.

10. In 2013, [X] was spending each alternate weekend with the father and a Thursday afternoon. In 2014, the father unilaterally determined that he would have time with [X] each weekend and that on alternate weekends he would return the child to the mother on Saturday mornings.

11. In March 2014, [X] was diagnosed with a “sulphite sensitivity/allergy”.

12. The mother commenced a relationship with Mr F, her current partner, in or about November 2014, but they did not move in together until 2015. After the mother notified the father of her intentions to move in with Mr F, the mother says that the father’s attitude towards her changed.

13. In 2015/2016 [X] was enrolled in the ‘Anchor Program’.

14. In early 2017, [X] commenced to see Ms D, a clinical social worker. The sessions were ultimately terminated.

15. The mother speaks of an incident at the swimming pool between the parents, upon which the father retained [X]. Two days later, on 29 July 2017, the mother received a phone call from the father where he advised he would not be returning the child. The mother reported the matter to the Police. A few days later, on 4 August 2017, [X] telephoned the mother.

16. On 9 August 2017, the father commenced proceedings, seeking orders for [X] to live with him and spend time with the mother. A Response was filed by the mother on 8 September 2017, and after a contested interim hearing on 13 September 2017, the Court ordered the father to deliver the child to the mother’s residence by that evening. The parties attended a Child Dispute Conference on the day of the interim hearing, and the Court also appointed an Independent Children’s Lawyer.

17. The interim orders made on 13 September 2017, have substantially been complied with by the parties.

18. In … 2017, the mother and [X] attended a 10 day cruise to Country N.

19. In January 2018, [X]’s NDIS plan was approved and [X] started attending School G High School in February 2018.

20. On 7 February 2018, the father filed a Notice of Discontinuance in respect of his Initiating Application.

21. Despite orders, neither party attended the Child Inclusive Child Dispute Conference which was booked for 22 March 2018.

22. On 17 May 2018, the mother attended Dr K, psychiatrist, with [X]. Dr K diagnosed [X] with Conduct/Behaviour disorder and depression (low mood disorder) and she was prescribed Risperdal.

Conclusion

1. The Court accepts the submissions made in both the mother’s case outline document and the Independent Children’s Lawyer’s case outline document. 

2. Having regard to the submissions and the matters of evidence, the Court is satisfied that the orders which are proposed are in [X]’s best interest and that they will facilitate a safe and loving environment for [X], that they will facilitate [X] spending meaningful time with her father to the extent that it will be safe for her to do so.  Therefore, orders are made in accordance with the document titled Terms of Settlement, dated 9 August 2018, signed by the Independent Children’s Lawyer and by the mother and on her behalf by her Counsel, and placed on the Court file.

3. All outstanding issues are otherwise removed from the list of cases awaiting finalisation. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 9 August 2018