FEDERAL CIRCUIT COURT OF AUSTRALIA
| GROVER & WALTHAM | [2017] FCCA 1720 |
| Catchwords: FAMILY LAW – Parenting – competing live with – allegations of child sexual and physical abuse – unacceptable risk – where the mother seeks the child’s time with the father be supervised – where the child has been living with the father – where there is a history of substance abuse and mental health problems on the part of the mother. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA & 65DAB Evidence Act 1999 (Cth), s.140 |
| Cases cited: Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Champness v Hanson (2009) FLC 93-407 |
| Applicant: | MR GROVER |
| Respondent: | MS WALTHAM |
| File Number: | NCC 1806 of 2012 |
| Judgment of: | Judge Harper |
| Hearing dates: | 3, 4 & 5 April 2017 |
| Date of Last Submission: | 5 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | Friedlieb Byrne |
| Counsel for the Respondent: | Ms Freidlander |
| Solicitors for the Respondent: | Aston Legal |
| Counsel for the Independent Children's Lawyer: | Mr Moore |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Sydney Central Family Law |
THE COURT ORDERS THAT:
All previous parenting orders in relation to the child [X], born 2011, (“the child”) be and are hereby discharged.
By consent, the parties have equal shared parental responsibility for the child.
The child live with the father.
The child spend time with the mother as agreed between the parties and, failing agreement, as follows:
(a)In the event the mother remains living more than 50 kilometres from the father’s residence:
(i)During the first weekend of every month from 6.30pm on Friday until 3.30pm on Sunday. For the purposes of this order, changeover is to occur at (town omitted) McDonalds, or as otherwise agreed between the parties. In the event that the mother wishes to collect [X] from school on Friday at the conclusion of school, she is to give the father 48 hours’ written notice of her intention to do so.
(ii)During the third weekend of every month from 5.30pm Friday until 3.30pm Sunday. For the purposes of this order, changeover is to occur at (town omitted) McDonalds, or as otherwise…
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- AGLC
- Grover and Waltham [2017] FCCA 1720
- Case
- [2017] FCCA 1720
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of parenting orders, including the discharge of previous orders, the establishment of equal shared parental responsibility, and the detailed arrangements for the child to live with the father and spend time with the mother. This involved considering various scenarios based on the geographical proximity of the parents, as well as provisions for school holidays, birthdays, and communication between the parents and with the child. The court also addressed issues related to the child's schooling, health, and wellbeing, and included specific prohibitions against physical chastisement and denigration of a parent.
The court's reasoning led to the discharge of all previous parenting orders. By consent, the parties were granted equal shared parental responsibility. The child was ordered to live with the father, with specific, detailed provisions for the child to spend time with the mother. These provisions were contingent on whether the mother resided more or less than 50 kilometres from the father's residence, outlining distinct arrangements for weekends, school holidays, and specific annual events like Christmas and Mother's Day. The orders also mandated communication protocols between the parents, facilitated communication between parents and the child, and included provisions for information sharing regarding the child's education and health. Furthermore, the court imposed restrictions on the mother's alcohol and illicit substance consumption prior to and during her time with the child, and prohibited physical chastisement of the child by either parent. Provisions were also made for the potential application by the father to change the child's name.
Orders
Orders of the court
1.
All previous parenting orders in relation to the child [X], born 2011, (“the child”) be and are hereby discharged.
2.
By consent, the parties have equal shared parental responsibility for the child.
3.
The child live with the father.
4.
The child spend time with the mother as agreed between the parties and, failing agreement, as follows:
(a) In the event the mother remains living more than 50 kilometres from the father’s residence:
(i) During the first weekend of every month from 6.30pm on Friday until 3.30pm on Sunday. For the purposes of this order, changeover is to occur at (town omitted) McDonalds, or as otherwise agreed between the parties. In the event that the mother wishes to collect [X] from school on Friday at the conclusion of school, she is to give the father 48 hours’ written notice of her intention to do so.
(ii) During the third weekend of every month from 5.30pm Friday until 3.30pm Sunday. For the purposes of this order, changeover is to occur at (town omitted) McDonalds, or as otherwise agreed between the parties. In the event that the mother wishes to collect [X] from school on Friday at the conclusion of school, she is to give the father 48 hours’ written notice of her intention to do so.
(iii) During the school holidays at the conclusion of New South Wales School Terms 1, 2 and 3, such time commencing at 5.00pm on the first Saturday and concluding at 12 noon on the second Monday of that school holiday period. For the purposes of this order, the father will deliver the child to (town omitted) at the commencement of time, and collect the child from the McDonalds in (town omitted) at the conclusion of time.
(iv) During the school holidays at the conclusion of New South Wales School Term 4 for a total of four weeks as agreed between the parties or, failing agreement, in alternating fortnightly block periods. For the purposes of this order, the father will deliver the child to (town omitted) at the commencement of time and collect the child from the McDonalds in (town omitted) at the conclusion of time.
(b) In the event the mother relocates to within 50 kilometres of the father’s residence:
(i) Each alternate weekend from the conclusion of school on Friday until 5:00pm Sunday;
(ii) During school terms from the conclusion of school on Wednesday until the commencement of school on Thursday.
(iii) From half of each of the New South Wales school holiday periods as agreed between the parties, and failing agreement, for the first half in odd numbered years and for the second half in even numbered years;
(iv) For the purposes of orders (b)(i) – (iii) above, changeover is to occur at the father’s residence.
(c) Notwithstanding any other order, from 10.00am on Christmas Eve until 5.00pm on 27 December in even numbered years.
(d) Unless the child is already in the mother’s care:
(i) On Mothers’ Day as agreed between the parties or, failing agreement, from 10:30am until 4:30pm;
(ii) On the child’s birthday as agreed between the parties or, failing agreement, for a minimum of four hours as agreed between the parties, or failing agreement, from 2:30pm until 6:30pm on a weekend or 3pm until 7pm on a school day, which such time to occur in (town omitted).
5.
Each parent be permitted to communicate with the child at any reasonable time while he is spending time with the other parent by way of telephone, email or Skype and the parent with whom the child is spending time shall facilitate such communication.
6.
In the event that the child is too ill or unable to spend time with the mother for whatever reason in accordance with these orders, the father shall provide the mother with no less than 24 hours’ notice or as soon as practicable prior to the time the mother is to spend time with the child.
7.
The father is to ensure that:
(a) The mother's address and telephone number are provided to any school which the child attends.
(b) The mother has a copy of any significant correspondence (not otherwise available on the school website), including but not limited to copies of any assessments, school reports and order forms for school photos.
(c) The father ensure the mother is advised of any significant issues or concerns in relation to the child’s progress at school as well as any achievements.
(d) The father is to ensure the mother has an opportunity to attend any parent/teacher interviews arranged to discuss the child’s progress.
(e) The mother may attend any school event in the nature of which parents are usually invited to attend, including but not limited to school assemblies, concerts, sports days and fundraising events.
8.
These orders are authority for either parent to contact any school that the child shall attend in order to receive any information regarding the child’s extracurricular activities and school related events, including parent/teacher interviews, parent days, assemblies, concerts and like events to which parents are invited, and any other information with which parents are routinely provided.
9.
The father is to keep the mother informed of any extra-curricular activities in which the child is enrolled.
10.
Each parent shall keep the other informed of any significant issues relating to the health and general wellbeing of the child that arise while the child is in their care, and shall forthwith advise the other of any accident or significant illness affecting the child including providing details of treatment and attendance at doctors and hospitals.
11.
The father is to keep the mother informed about any specialist or other appointments that the child attends (including but not limited to speech therapy) and is to advise her about the outcome of those appointments and any follow up treatment.
12.
These orders are authority for either party to contact any health professional or other therapist that the child shall attend in order to receive any information regarding the child’s health, prognosis and progress and any other information with which parents are routinely provided.
13.
Each parent be and is hereby restrained from subjecting the child to any form of striking or physical chastisement and to use their best endeavours to ensure that no other person does so.
14.
The parties are to communicate with each other via text message or email, only for the purpose of making arrangements for the child to spend time with each parent and for sharing information about the child’s progress and development.
15.
Neither parent is to denigrate the other parent in the hearing or presence of the child nor allow any other person to do so.
16.
Each parent is to keep the other informed of their respective addresses and telephone numbers, including landline and mobile.
17.
The mother be restrained from consuming alcohol or any illicit substance for the period 48 hours prior to the commencement of her time with the child until the end of her time with the child.
Interpretation
18.
Where agreement between the parties is referred to in these orders, it is to be read as a reference to agreement in writing.
Application for Change of Name
19.
In the event the father wishes to press an application for change of the child’s name:
(a) Within 28 days of the date of these orders he is to forward to my Chambers and serve on the mother and the Independent Children’s Lawyer a minute of the proposed orders sought and detailed written submissions in support;
(b) Within 21 days of the father carrying out order 19(a), the Independent Children’s Lawyer is to forward to my Chambers and serve on the mother and the father a minute of the proposed orders sought and detailed written submissions in support; and
(c) Within 21 days of the father carrying out order 19(a), the mother is to forward to my Chambers and serve on the father and the Independent Children’s Lawyer a minute of the proposed orders sought and detailed written submissions in support.
(d) Any party wishing to have time allocated for oral argument on any proposed orders as to change of name is to include such a request in their written submissions, otherwise the application will be dealt with on the papers in Chambers.
THE COURT NOTES THAT:
20.
Should the mother choose to travel to (town omitted) at times other than those specified in this order, she shall give the father as much notice as practical and the father will facilitate additional time, with the precise arrangements to be agreed between the parties.
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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