FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gainer & Millen [2023] FedCFamC2F 1305
File number(s): PAC 964 of 2020 Judgment of: JUDGE STREET Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – PARENTING- progression from supervised time- no unacceptable risk Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)Cases cited: A v A (1998) FLC 92-800
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52Stott & Holgar [2017] FamCAFC 152
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 13 & 14 July 2023 Place: Sydney Applicant: Appeared in person Counsel for the Respondent: Mr P Friedlander Solicitor for the Respondent: Sharah & Associates, Solicitors and Conveyancers Counsel for the Independent Children’s Lawyer: Ms M Yu Solicitor for the Independent Children’s Lawyer: Sarah Bevan Family Lawyers ORDERS
PAC 964 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAINER
Applicant
AND: MS MILLEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
14 JULY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental Responsibility
2.The Mother shall have sole parental responsibility for the children X (born in 2013) and Y (born in 2017) (‘the Children’) provided that she notifies the Father of any long-term decisions that are made with respect to the Children within 48 hours of any such decision being made.
3.The parents are to use the OurFamilyWizard parenting app for any communication regarding the Children and the parties are each to acquire that app within 48 hours.
4.In the event that either child suffers an illness or medical emergency that requires immediate medical attention whilst in either parent’s care, that parent will as soon as practicable:
(a)Advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis;
(b)Advise the other parenting of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment.
(c)Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the other parent’s contact telephone number and email address to facilitate the same.
Live with
5.The children shall live with the mother.
Time with
6.For a period of no less than six (6) months from the making of these orders, the Children are…
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CaseChat Overview and Summary
The court was required to decide several key legal matters, including the allocation of parental responsibility, the frequency and nature of the children’s time with each parent, and the conditions under which such time should be spent. Additionally, the court had to address the parents' obligations regarding communication, health emergencies, and the use of digital communication tools to facilitate contact between the children and their non-residential parent. The court also needed to consider the necessity for supervised visits, the completion of specific parenting programs, and the implementation of restraining orders to protect the children from harmful conduct by either parent.
The court deliberated on these issues, considering the evidence presented by both parties and the applicable provisions of the Family Law Act 1975. In its reasoning, the court emphasised the paramount importance of the children’s welfare and best interests. The court found that sole parental responsibility should be allocated to the mother, with the father having specified visitation rights that progressed from supervised to unsupervised time, contingent on fulfilling certain conditions. The court mandated the use of the OurFamilyWizard app for communication and outlined detailed protocols for health emergencies, supervised visits, and digital communication. It also imposed restrictions on the parents' conduct to safeguard the children’s well-being.
The final orders of the court mandated the discharge of all previous parenting orders, allocated sole parental responsibility to the mother, and outlined specific arrangements for the children's time with the father, including supervised visits that would transition to unsupervised time based on compliance with certain conditions. The orders also included provisions for communication, health emergencies, and the use of digital tools, as well as restrictions on the parents' conduct to protect the children's welfare.
Orders
Orders of the court
PAC 964 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR GAINER
Applicant
AND:
MS MILLEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
14 JULY 2023
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
Parental Responsibility
2. The Mother shall have sole parental responsibility for the children X (born in 2013) and Y (born in 2017) (‘the Children’) provided that she notifies the Father of any long-term decisions that are made with respect to the Children within 48 hours of any such decision being made.
3. The parents are to use the OurFamilyWizard parenting app for any communication regarding the Children and the parties are each to acquire that app within 48 hours.
4. In the event that either child suffers an illness or medical emergency that requires immediate medical attention whilst in either parent’s care, that parent will as soon as practicable:
(a) Advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis;
(b) Advise the other parenting of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment.
(c) Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the other parent’s contact telephone number and email address to facilitate the same.
Live with
5. The children shall live with the mother.
Time with
6. For a period of no less than six (6) months from the making of these orders, the Children are to spend supervised time with the Father on a Sunday on each month for three (3) hours each time in the Sydney metropolitan area, with such time to be supervised by B Contact Centre or another available supervising service in the Region C area, at the Father’s cost.
7. For the purposes of Order 6 both parents must:
(a) Contact the supervising service within seven (7) days to arrange an appointment for assessment for suitability;
(b) Attend the assessment;
(c) Comply with any appointment made by the supervising service;
(d) Comply with all reasonable rules of the supervising service; and
(e) Comply with all reasonable requests or directions of the staff of the supervising service.
8. Following the conclusion of Order 6, unless otherwise agreed between the parents in writing, the Children shall, subject to Order 9, spend unsupervised time with the Father on the third Sunday of every month in the Sydney metropolitan area as follows:
(a) For a period of three (3) months – from 10:00am to 2:00pm;
(b) At the conclusion of compliance by the Father with Order 8(a), the first half of every school holidays in even years and the second half of every school holidays in odd years.
9. The Father’s time in accordance with Order 8 is not to commence until:
(a) The Father has completed the Circle of Security parenting program and provided a certificate of completion to the Mother; and
(b) There have been a minimum of six (6) supervised visits undertaken between the Father and the Children in accordance with Order 6.
Changeover
10. For the purpose of Order 8, unless otherwise agreed between the parents in writing, changeover is to occur at the McDonalds in Suburb E (D Street, Suburb E) with the Father collecting and returning the Children.
Video Communication
11. Unless otherwise agreed between the parties in writing, the Children shall have video call or other FaceTime digital communication with the Father each Tuesday 5:30-6:00pm, Thursday 5:30-6:00pm and Sunday 10:00am-10:30am, unless attending a supervised visit with the Father.
Special Occasions
12. Unless otherwise agreed between the parties in writing, if they are not otherwise spending time with the Father, the children shall have video call or other digital communication with the Father between 10:00am and 10:30am on the following special occasions:
(a) Each child’s birthday;
(b) Father’s Day;
(c) Christmas Day; and
(d) Easter Sunday.
13. For the purpose of Orders 11 and 12 the communication shall be initiated by the Father through OurFamilyWizard to identify the video call or other FaceTime communication which the Mother is to facilitate and the Mother is not to monitor, record or interfere with those communications.
Support for Mother
14. The Mother is to attend and complete a parenting after separation course and/or otherwise attend upon a psychologist on at least three (3) occasions for support in co-parenting within the next six (6) months.
School Reports
15. The Father has authority to engage and obtain information, as would normally be available to a parent, from any professional, body or organisation that holds information about the Children including but not limited to treating professionals, doctors, specialists, hospitals, schools and sporting associations, at the Father’s own cost.
16. After the period of supervision is completed and requirements in Order 9, the Father may attend all school and sporting events provided that he gives the Mother 24 hours advance notice of the same in writing.
17. The Mother provide an address or PO Box to which the Father may send gifts and cards to the Children within seven (7) days, and within a further seven (7) days of any change.
Mother to have Communication with Children whilst in the Father’s care
18. When the Children are in the Father’s care the Children are to be permitted to contact the Mother by video call, FaceTime or other digital communication in accordance with their wishes and the Father is to ensure that occurs.
Restraints
19. Pursuant to s 68B of the Family Law Act 1975 (Cth), each parent is restrained from:
(a) physically disciplining the Children;
(b) denigrating the other parent, members of the other parent’s family or household in the presence or hearing of the Children and shall remove the children from the presence or hearing of any third party who does so;
(c) discussing these proceedings within the presence or hearing of the Children, and each parent shall use their best endeavours to ensure that no third party discusses these proceedings within the presence or hearing of the Children;
(d) consuming alcohol to excess or illicit substances within 24 hours of coming into contact with the Children; and
(e) from attending upon the other parent’s home or workplace.
20. The Court reserves its written reasons.
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
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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