FAMILY COURT OF AUSTRALIA
| FULTON & DANIEL | [2016] FamCA 941 |
| FAMILY LAW – CHILDREN – Where the mother makes sexual abuse allegations against the father and paternal grandmother – Where there is found to be no unacceptable risk of harm to the child – Where the mother has been diagnosed with a personality disorder with borderline and dependent traits – Where the father is to have sole parental responsibility in relation to health and education and the mother is to have sole parental responsibility in relation to religion – Where the child is to live with the father and spend increasing time with the mother. FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother makes an oral application to vary interim orders after retaining the child – Where the mother’s application is dismissed – Where the mother makes an oral application to reopen the final hearing to lead further evidence – Where the mother’s application is dismissed – Where the mother’s time with the child is suspended until further order – Where the mother is ordered to return the child to the father. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Fulton |
| RESPONDENT: | Mr Daniel |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Luke |
| FILE NUMBER: | WOC | 380 | of | 2014 |
| DATE DELIVERED: | 26 October 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 7 - 11 March 2016 12 October 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Neville |
| SOLICITOR FOR THE RESPONDENT: | Aboriginal Legal Service |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lukes Law |
Orders
The father have sole parental responsibility for major long term decisions about education, health and Aboriginal cultural upbringing for the child B born … 2011 (“the child”) on the condition that:
1.1.The father will contact the mother in writing and provide his views about any such issue;
1.2.The father shall consult with the mother with regard to any such issue;
1.3.The father and mother will make a genuine effort to come to a joint decision about any such issue;
1.4.If no agreement is reached between the parties, then within 14 days the father shall make the final decision and advise the mother in writing of the decision about any such issue.
The mother have sole parental responsibility for major decisions about religious upbringing for the child on the condition that:
2.1.The mother will contact the father in writing and provide her views about any such issue;
2.2.The mother shall consult with the father with regard to any such issue;
2.3.The mother and father will make a genuine effort to come to a joint decision about any such issue;
2.4.If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.
Neither party change the child’s name without the consent of the other.
The father…
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- FULTON & DANIEL [2016] FamCA 941
- Case
- [2016] FamCA 941
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting arrangements for the child, including issues of parental responsibility for major long-term decisions, the child's living arrangements, and the extent of time the child would spend with each parent. Additionally, the court considered the mother's oral applications to vary interim orders after retaining the child, to reopen the final hearing to lead further evidence, both of which were dismissed.
Justice Watts applied principles of family law concerning the welfare of the child as the paramount consideration. The court's reasoning led to orders where the father was granted sole parental responsibility for the child's education, health, and Aboriginal cultural upbringing, with specific conditions for consultation with the mother. The mother was granted sole parental responsibility for the child's religious upbringing, also with consultation requirements. The child was ordered to live with the father, with provisions for increasing time with the mother. The court also imposed conditions on the mother's time with the child, including monitoring by specified individuals and assurances regarding the child's safety. Further orders addressed communication between the parents, medical information, therapy, co-parenting programs, and prohibitions against denigration of the other parent.
Orders
Orders of the court
1.
The father have sole parental responsibility for major long term decisions about education, health and Aboriginal cultural upbringing for the child B born … 2011 (“the child”) on the condition that:
1.1. The father will contact the mother in writing and provide his views about any such issue;
1.2. The father shall consult with the mother with regard to any such issue;
1.3. The father and mother will make a genuine effort to come to a joint decision about any such issue;
1.4. If no agreement is reached between the parties, then within 14 days the father shall make the final decision and advise the mother in writing of the decision about any such issue.
2.
The mother have sole parental responsibility for major decisions about religious upbringing for the child on the condition that:
2.1. The mother will contact the father in writing and provide her views about any such issue;
2.2. The mother shall consult with the father with regard to any such issue;
2.3. The mother and father will make a genuine effort to come to a joint decision about any such issue;
2.4. If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.
3.
Neither party change the child’s name without the consent of the other.
4.
The father not change the child’s living arrangements to make it significantly more difficult for the child to spend time with the mother.
5.
The child live with the father at all times that he is not spending time with the mother and also:
5.1. From 4pm on Christmas Eve until 3pm on Christmas day in odd numbered years;
5.2. From 4pm on Christmas day until 3pm on Boxing day in even numbered years;
5.3. For 3 hours on the child’s birthday and the father’s birthday, if the child is not otherwise living with the father on those days; and
5.4. From 5pm the day before Father’s day until 6pm on Father’s day.
6.
The child is to spend time with the mother as follows:
6.1. During 2016 from 8.30am until 6pm each Sunday, and from 9am to 6pm each Wednesday;
6.2. From the commencement of term one in 2017, from 8.30am Sunday until the commencement of school on Monday each weekend;
6.3. From the commencement of term two in 2017, during the school term from 10am Saturday until the commencement of school on Monday each alternate weekend;
6.4. From the commencement of term three in 2017, during the school term from after school on Friday until the commencement of school on Monday each alternate weekend;
6.5. During the June/July 2017 school holidays and thereafter, for one week in each short school holiday period, and for two, one week blocks in each Christmas holiday period;
6.6. From 4pm on Christmas Eve until 3pm on Christmas day in even numbered years;
6.7. From 4pm on Christmas day until 3pm on Boxing day in odd numbered years;
6.8. For 3 hours on the child’s birthday and the mother’s birthday;
6.9. From 5pm the day before Mother’s day until 6pm on Mother’s day; and
such other day as agreed in writing.
6.10. Such other time as reasonably requested in writing on a minimum of one weeks’ notice and which is agreed to in writing.
7.
The mother’s time in order 6 is to be monitored until the completion of term 1 2017 by one of the following people:
7.1. the maternal grandmother, Ms C Daniel
7.2. the maternal grandfather, Ms D Daniel
7.3. the maternal aunt, Ms E
7.4. the maternal aunt, Ms F
7.5. Ms G
7.6. Rev. H
on the condition they have given the father an assurance in writing that if the mother appears mentally unstable or affected by drugs or alcohol then the monitor shall remove the child from the mother’s care and contact the father to arrange the child’s return to the father’s care.
8.
For the purpose of monitoring the mother’s time, in accordance with Order 7, the mother is to ensure that at least one of the monitors sees her in person during each period that she spends time with the child.
9.
Changeover is to occur at the child’s school or preschool, and at the mother’s Church on Sunday mornings, and otherwise by the father delivering the child to the mother at the commencement of time and the mother returning the child to the father at the conclusion of time.
10.
Except in the case of an emergency, the mother is not to take the child to a doctor unless she has the father’s written permission and only to a doctor or medical service authorised by the father.
11.
Both parties are to continue to engage with their current therapists, Ms I’s and Ms J, or if they are unavailable with such other therapists as recommended by such therapists.
12.
Within 14 days each party is to attend upon their general practitioner for review of their current medication and discuss with their general practitioner the medication that they are taking and any concerns about the level of their medication and dependence upon prescription medication.
13.
The parties are to do all things and sign all such consents or documents necessary, so as to engage with Family Services Suburb K and will continue to engage with Family Services Suburb K or such other services recommended by them, for such time as deemed necessary by the Service.
14.
The parties are to do all things necessary to engage with the Kids Count program and ensure that the child attends also as directed by that organisation, for assistance with co-operative parenting of the child and management of his behaviour generally.
15.
Neither party is to denigrate the other party or their extended family or household members, to or in the presence of the child, and shall use their best endeavours to prevent any other person doing so.
16.
The parties are restrained from consuming any alcohol while the child is in their care and for 24 hours prior to the child coming into their care.
17.
The parties are restrained from consuming prescription medication that is not prescribed for them, and shall only consume prescription medication or any medication in accordance with the dosage prescribed for them or otherwise written on the packet.
18.
Both parents are to ensure the child is not exposed to cigarette smoke or an environment where persons are smoking inside or near the child.
19.
The father is to facilitate the child communicating with the mother by telephone every Tuesday and Friday during 2016, and every Tuesday and Thursday during 2017 and thereafter, at a time agreed between the parents, and failing agreement, at 5.30pm, and the father is to ensure the child has a phone available to accept the call and that the child anticipates the call. The father is not to have the television on during the time the child is speaking to the mother.
20.
The father is to ensure that the child is able to telephone the mother at such other reasonable times as the child requests to do so.
21.
Each parent shall ensure that the other parent is notified as soon as practicable of:
21.1. any admission of the child to hospital;
21.2. any medical emergency involving the child;
21.3. any diagnosis of the child with a serious condition or illness that will require ongoing specialist treatment or care;
21.4. any medication which is prescribed for the child;
21.5. any specialist medical appointments which are arranged for the child and provide details of same.
22.
The father shall advise the mother of the names and contact details of all of the child’s treating medical practitioners and specialists and authorise such medical practitioners to give the mother information about the child’s treatment.
23.
The father shall ensure the child continues at L Care Centre, until completion of preschool in 2016.
24.
These Orders authorise any school or preschool which the child attends 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 child 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 and/or the father in relation to the child.
25.
Both parents are entitled to attend functions, parent teacher nights and like activities to which parents are invited.
26.
The parents are to notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of the change.
27.
The parents are to notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
28.
The mother and the father shall:
28.1. be restrained from:
28.1.1. discussing these proceedings in the hearing of or presence of the child;
28.1.2. speaking about or making any post to social media concerning 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 the child;
28.2. take all reasonable steps to prevent any other person:
28.2.1. discussing these proceedings in the hearing of or presence of the child;
28.2.2. speaking about or making any post to social media concerning 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 the child.
29.
The ICL is to forward to Ms I and Ms J a copy of the orders and reasons.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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