FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Frank & Ryker [2023] FedCFamC2F 1615
File number: MLC 9310 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – Parenting – High conflict between the parents – Where presumption of equal shared parental responsibility rebutted because of family violence – Whether the child needs to be protected from psychological harm from being subjected to emotional abuse by the Mother undermining the child’s relationship with the Father –– Allocation of sole parental responsibility as to health to the Mother – Shared parental responsibility as to all other issues – Orders made that the child live with the Mother and spend time with the Father – No order that the Father’s time be conditional on him completing a Men’s Behavioural Change Program or other treatment – No order that the Mother’s time be conditional on psychological treatment Legislation: Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 60CI 65DAC, 69ZW Cases cited: Adamson & Adamson (2014) FLC 93-622
Allum & Ervin [2022] FedCFamC1F 177
Bielen & Kozma (2002) 66 Fam LR 59
Bondelmonte & Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Carlson & Fluvium [2012] FamCA 32
Carter & Wilson (2023) 66 Fam LR 238; [2023] FedCFamC1A 9
Lainhart & Ellinson [2023] FedCFamC1A 200
Donaghey v Donaghey (2011) 45 Fam LR 183; [2011] FamCA 13
Fox v Percy (2003) 214 CLR 118, [2003] HCA 22
Freeman & Freeman (1987) FLC 91-857 at 96,470-71
Goldrick v Goldrick [2007] FamCA 1260
Guerra & Guerra [2021] FedCFamC1F 73
In the marriage of JG and BG (1994) FLC 92-51
In the marriage of Jurss (1976) 9 ALR 455; 1 FamLR 11
Isles & Nelissen [2022] FedCFamC1A 97; 65 Fam LR 288
Lennon & Lennon [2011] FamCA 571
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Oberlin v Infeld (2021) 63 Fan LR 88; [2021] FamCAFC 66
Reid & Lynch [2010] FamCAFC 184
Sargent & Selwyn [2020] FamCAFC 110
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 2 Family Law Number of paragraphs: 352 Date of last submissions: 26 October 2023 Date of hearing: 17-21 April 2023, 16-18 May 2023, 26 May 2023, 2-3 October 2023, 10 October 20223, 26 October 2023 Place: Melbourne Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Westminster Lawyers Counsel for the Respondent: Ms Smallwood SC and Mr Heggie Solicitor for the Respondent: Sage Family Lawyers ORDERS
MLC 9310 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FRANK
Applicant
AND: MR RYKER
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.All previous Orders be and are hereby discharged.
2.The Father has leave to amend his application in accordance with his amended application filed 7 July 2023.
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CaseChat Overview and Summary
The legal issues central to this case included whether the presumption of equal shared parental responsibility should be rebutted due to the history of family violence and emotional abuse, and if so, how parental responsibilities should be allocated to mitigate the harm to the child. Additionally, the court had to decide on a living arrangement that would allow X to maintain a relationship with both parents while protecting the child from the adverse effects of the parents' conflict.
The court found that the presumption of equal shared parental responsibility was rebutted due to the family violence and emotional abuse perpetrated by Ms. Frank. Consequently, the court allocated sole parental responsibility for health-related decisions to Ms. Frank, while granting shared parental responsibility for all other major long-term issues to both parents. The court ordered that X would primarily live with Ms. Frank but spend significant time with Mr. Ryker during school terms and holidays in a structured fortnightly rotation. Special provisions were made for holidays, birthdays, and significant family events to ensure both parents had meaningful time with X. The court did not impose conditions on either parent's time with X that required completion of a behavioural change program or psychological treatment.
The final orders reflect a balanced approach, aiming to provide stability and continuity for X while addressing the risks posed by the parents' conflict. The court emphasised the importance of minimising the child's exposure to family violence and ensuring a supportive environment for X’s development and relationship with both parents.
Orders
Orders of the court
MLC 9310 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS FRANK
Applicant
AND:
MR RYKER
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1. All previous Orders be and are hereby discharged.
2. The Father has leave to amend his application in accordance with his amended application filed 7 July 2023.
Parental Responsibility
3. The parents have shared parental responsibility for X born in 2017 (X) for all major long-term issues save and except health as set out in Order 4 below.
4. The Mother have sole parental responsibility in respect of major long-term decisions relating to X’s health, on the conditions that (save for in an emergency):
(a) the Mother will contact the Father in writing and provide her views about any such issues;
(b) the Mother shall consult with the Father in regard to any such issues; and
(c) if no agreement is reached between the parties, then within 14 days the Mother shall make the final decision and advise the Father is writing of the decision about any such issue.
Living arrangements during the school terms
5. X lives with the Mother.
6. X spends time with the Father during school terms on a fortnightly cycle as follows:
(a) in week one, from the conclusion of school on Friday (or 3:30 pm if not a school day) until the commencement of school on Monday (or 9:00am if not a school day save in the event the Monday is a public holiday or curriculum day in which event at 9:00 am on Tuesday) and each alternate week thereafter;
(b) in week two, from the conclusion of school on Wednesday (or 3:30 pm if not a school day) until the commencement of school on Friday (or 9:00 am if not a school day) and each alternate week thereafter; and
(c) as may be further or otherwise agreed between the parties in writing.
School Term Holidays
7. X lives with the Father for half of term 1, 2 and 3 of the school holidays as agreed between the parents and failing agreement, for the first half in odd numbered years and the second half in even numbered years, and will otherwise spend the other half of the school holidays with the Mother, with changeover to occur as follows:
(a) The parent who is to have the first half of the school term holidays will collect X at the conclusion of school on the last day of term; and
(b) The parent who is to have the second half of the school terms holidays will collect X from the other parent’s residence at 4:00 pm on the second Saturday of the holiday period (or the second Tuesday if the holiday period is three weeks) and will deliver her to school at the commencement of the new school term.
AND, in the event there is an odd number of nights in the school holiday period, X is to spend time with the Mother for the additional night.
Long Summer Holidays
8. For all long summer holidays, except as agreed in writing by the parents, the school term live-with arrangements in Orders 5 and 6 continue (with time suspended for Christmas as per Order 15) until 2 January from which date the following will occur:
(a) In the 2023-2024 long summer holidays, from 2 January 2024, X will spend time with the Father for the first week of the long summer holidays; then with the Mother for the second week of the long summer holidays alternating each week thereafter until the commencement of the term 1. In the event there is an odd number of nights in the long summer holiday period before school commences after 30 January 2024, X is to spend time with the Mother for the additional nights.
(b) In the 2024-2025 long summer holidays, from 2 January 2025, X will spend time with the Mother for the first week of the long summer holidays; then with the Father for the second week of the long summer holidays alternating each week thereafter until the commencement of term 1. In the event there is an odd number of nights in the long summer holiday period before school commences after 30 January 2025, X is to spend time with the Mother for the additional nights.
(c) In the 2025-2026 long summer holidays, from 2 January 2026, X will spend time with the Mother for the first fortnight of the long summer holidays and alternate on a fortnightly basis; then with the Father for the second fortnight (or part thereof) of the long summer holidays until the commencement of the term 1. In the event school commences after 30 January 2026, X is to spend time with the Mother for any additional nights before the commencement of term 1.
(d) In the 2026-2027 long summer holidays, from 2 January 2027, X will live with the Father for the first fortnight from 2 January 2027 of the 2026-2027 long summer holidays; and
(e) in each alternate each thereafter, each parent will have a different first fortnight with X for all subsequent long summer holidays and time will otherwise be in accordance with Order 8(c) above.
X’s Birthday
9. The time X is otherwise living with either parent pursuant to these Orders be suspended for X’s birthday so that:
(a) X spends time with the Father on her birthday in 2024 and each following even numbered year from the conclusion of school (or 12:00 pm if a non-school day) until the commencement of school (or 12:00 pm if a non-school day), and X spends time with her Mother from the conclusion of school (or 12:00 pm if a non-school day) the following day until the commencement of school (or 12:00 pm if a non-school day); and
(b) X spends time with the Mother on her birthday in 2025 and each odd numbered year, from the conclusion of school (or 12:00 pm if a non-school day) until the commencement of school (or 12:00 pm if a non-school day) the following day, and X spending time with her Father from the conclusion of school (or 12:00pm if a non-school day) the following day until the commencement of school (or 12:00 pm if a non-school day) the following day; or
(c) at such other times as agreed between the parties in writing.
Father’s Day
10. The time X is otherwise living with either parent pursuant to these Orders be suspended so that she spends time with the Father on Father’s Day:
(a) from 4:00 pm on the Saturday before Father’s Day until the commencement of school on Monday (or 9:00 am if a non-school day)
(b) Should another special occasion fall on the same day, time that X is otherwise living with either parent be suspended so that she spends time with the Father from 4:00 pm on the Saturday before Father’s Day until 2:00 pm on the Sunday of Father’s Day. X will then spend time with the Mother from 2:00 pm on Sunday (Father’s Day) until the commencement of school on Monday the next day (or 9:00 am if a non-school day) and the regular school term living arrangements will recommence in accordance with Orders 5 and 6; or
(c) at such other times as agreed between the parties in writing.
Father’s Birthday
11. The time X is otherwise living with either parent pursuant to these Orders be suspended so that she spends time with the Father on the Father’s birthday:
(a) if on a school day, from the conclusion of school on the Father’s birthday until the commencement of school the day after his birthday (or until 9:00 am if the following day is a school day); or
(b) if on a non-school day, from 12:00 pm on the Father’s birthday until 4:00 pm the following day (or until the commencement of school if the following day is a school day); or
(c) at such other times as agreed between the parties in writing.
B’s Birthday
12. The time X is otherwise living with the Mother pursuant to these Orders be suspended so that X will spend time with the Father for B’s birthday as follows:
(a) If a school day, from the conclusion of school on the day of B’s birthday until the commencement of school the following day (or 9:00 am if the following day is a non-school day).
(b) If a non-school day, from 4:00 pm the day before B’s birthday until 9:00 am the day after B’s birthday (or the commencement of school if the day following B’s birthday is a school day); or
(c) at such other times as agreed between the parties in writing.
Mother’s Birthday
13. The time X is otherwise living with either parent pursuant to these Orders be suspended so that she spends time with the Mother on the Mother’s birthday:
(a) if on a school day, from the conclusion of school on the Mother’s birthday until the commencement of school the day after her birthday (or until 9:00 am if the following day is a school day); or
(b) if on a non-school day, from 12:00 pm on the Mother’s birthday until 4:00 pm the following day (or until the commencement of school if the following day is a school day); or
(c) at such other times as agreed between the parties in writing.
Mother’s Day
14. The time X is otherwise living with or spending time with either parent pursuant to these Orders be suspended and X spends time with the Mother for Mother’s Day each year:
(a) from 4:00 pm on the Saturday before Mother’s Day until the commencement of school on Monday (or 9:00 am if a non-school day); or
(b) at such other times as agreed between the parties in writing.
Christmas
15. The time X is otherwise living with or spending time with either parent pursuant to these Orders be suspended for Christmas 2023 so that X will spend time with:
(a) the Mother from 3:00 pm Christmas Eve to 3:00 pm Christmas Day; in each odd numbered year; and
(b) the Father from 3:00 pm Christmas Day to 3:00 pm Boxing Day, and in each even numbered year; or
(c) at such other times as agreed between the parties in writing.
Easter
16. The time X is otherwise living with or spending time with either parent pursuant to these Orders (including Order 7) be suspended for Easter 2024 so that X will spend time with:
(a) the Mother from 9:00 am Good Friday to 9:00 am Easter Saturday; in each even numbered year; and
(b) the Father from 9:00 am Easter Saturday to 3:00 pm Easter Sunday, in each odd numbered year; or
(c) at such other times as agreed between the parties in writing.
Telephone Contact
17. X will communicate with each of her parents by telephone/FaceTime at any reasonable time requested by X and in the case of the special occasions such as Easter, Christmas, a parent’s birthday or X’s birthday, the parent who is caring for X at the time will facilitate X telephoning/FaceTiming the other parent.
Changeover
18. Changeover is to occur at school where practicable.
19. Unless otherwise contained in these Orders, where changeover does not occur at school, changeover shall be effected as agreed between the parents, and failing agreement:
(a) The Father is to collect X from the Mother's residence at the commencement of time.
(b) The Mother is to collect X from the Father's residence at the conclusion of time.
20. If these Orders do not otherwise specify a time for a changeover, changeover is to occur at 4:00 pm.
21. Where changeovers do not occur at school, the parents be at liberty to nominate a support person familiar to X to effect changeover and they will notify the other parent by text message of the family member or other person effecting changeover in advance.
Interstate Travel
22. The parents are at liberty to travel interstate with X provided he or she give the other parent no less than 14 days’ notice in writing, or as otherwise agreed in writing, and provide the other parent:
(a) a copy of the itinerary;
(b) a copy return e-ticket;
(c) particulars of the places and contact numbers at where X is staying (as applicable); and
(d) details of any other person who will be travelling with X.
23. Unless agreed in writing, the parties shall only be permitted to take X interstate during such times as X is to be in their care pursuant to these Orders.
Overseas Travel
24. The parents are at liberty to travel overseas with X provided he or she give the other parent no less than 30 days’ notice in writing, or as otherwise agreed in writing, and provide the other parent:
(a) A copy of the itinerary;
(b) A copy return e-ticket;
(c) within 7 days of any intended travel, proof that X has received any and all necessary vaccinations at least 7 days prior to the intended overseas travel;
(d) particulars of the places and contact numbers at where X is staying (as applicable); and
(e) arrange appropriate make up time for the other parent if the holiday falls over a time X would otherwise be living with / spending time with them.
25. The travelling parent must provide the other parent with no less than 14 days’ notice of their intention to cancel the holiday plans with X and in the event the travelling parent provides notice of cancellation of a trip to the other parent with within less than 14 days, then X’s time with the travelling parent proceed as if the travelling parent’s intended holiday plans were to proceed.
Passport
26. The Mother holds X’s passport on the following terms:
(a) The Mother shall provide the passport to the Father 7 days prior to any overseas travel with X or as required to obtain any necessary visa for travel; and
(b) The Father shall return to the Mother X’s passport within 7 days from returning from any overseas travel with X.
27. Upon compliance with Order 24, consent is deemed to have been given to the overseas travel by the non-travelling parent.
Contact details
28. Each parent will keep the other informed of:
(a) their contact telephone numbers and residential addresses; and
(b) the details of any extracurricular activity attended by X whilst in their care.
Medical
29. In relation to any illness and medical issues, each parent will notify the other:
(a) immediately if X suffers any serious injury while in their care;
(b) as soon as practicable if X suffers any other injury or illness while in their care.
30. In the event X is seriously injured or unwell such that she is admitted to hospital, her time with the Father pursuant to these Orders shall be suspended and she shall live with the Mother until such time as a doctor or allied health professional provides a medical certificate stating that she is well enough to attend school and upon provision of the medical certificate, the Father’s time with X pursuant to these Orders shall resume.
31. The Mother will arrange all doctors’ appointments and allied health professional appointments for X (inclusive of times X is in the Father’s care but will notify the Father in advance in writing of any appointments made for X while in his care).
32. Unless otherwise agreed or in the case of a family emergency or X being unwell, both parents will do all acts and things to ensure X attends her usual school program within the normal hours of operation and in the event X is kept home unwell, the parents who keeps her home will notify the other parent no later than 9:00 am that day of X’s illness.
School functions or extra-curricular functions
33. Each parent will be at liberty to attend any school functions or extra-curricular functions that parents are invited to attend.
34. The parents cannot enrol X in any extra-curricular activity or school camp that occurs during scheduled time with the other parent, without the other parent’s written consent.
Agreed variation to live with and spend time with arrangements in writing
35. By prior agreement in writing the parties may vary the live with and spend time arrangements set out in these orders.
Procedural
36. Pursuant to s. 65DA(2) and s. 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are attached and are included in these Orders.
37. All extant applications are dismissed, save as to costs.
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.
Background
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Evidence
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Decision
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