FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haberlin & Ezard [2021] FedCFamC2F 232
File number(s): TVC 1190 of 2020 Judgment of: JUDGE BOWREY Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – Parenting – undefended hearing – where the Father has demonstrated an unwillingness to engage in proceedings – consideration of the children’s best interests. Legislation: Education (General Provisions) Act 2006 (Qld)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Federal Court and Family Court of Australia Act 2021Cases cited: Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Tate & Tate [2000] FamCA 1040
Zane & Allen (2008) FLC 93-378
Division: Division 2 Family Law Number of paragraphs: 54 Date of hearing: 11 October 2021 Place: Townsville Counsel for the Applicant: Mrs Bassano Solicitor for the Applicant: MK Family Law Respondent: There being no appearance by or on behalf of the Respondent Counsel for the Independent Children's Lawyer: Mr Baston Solicitor for the Independent Children's Lawyer: Murray & Lyons Solicitors ORDERS
TVC 1190 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HABERLIN
Applicant
AND: MR EZARD
Respondent
ORDER MADE BY:
JUDGE BOWREY
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Orders dated 20 April 2015 be discharged.
Parenting responsibility
2.The mother have sole parental responsibility in relation to the major-long term issues affecting the children, X born in 2010 and Y born in 2012 (“the children”), including but not limited to:-
(a)The children’s education (both current and future);
(b)The children’s health;
(c)The children’s religion and cultural upbringing;
(d)The names by which the children are ordinarily known; and
(e)Any changes to the children’s living arrangements which make it significantly more difficult for the children to spend time with either parent.
3.In exercising sole parental responsibility, the mother must keep the father informed at all times as to the major long-term issues in relation to the children and specifically:-
(a)Attempt to communicate to the father the decision to be made, should she be able to do so by forwarding an email to the father at an email address to be provided by the father and to be kept current by the father; and
(b)Inform the father of any final decision made within forty-eight (48) hours of the making of the decision by forwarding an email to the father at an email address to be provided by the father and to be kept current by the father.
4.These Orders operate as authority for all care providers (including but not limited to doctors, health professionals, counsellors) to provide any information concerning the children to both the father and the mother. However the father is restrained from providing any instructions to any medical or health provider not to proceed or withdrawing consent to any treatments authorized by the mother without the mother’s written agreement or order of the Court. Any costs incurred in obtaining any…
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- AGLC
- Haberlin & Ezard [2021] FedCFamC2F 232
- Case
- [2021] FedCFamC2F 232
- Decision Date
CaseChat Overview and Summary
The court had to determine the appropriate allocation of parental responsibility, living arrangements, and communication between the children and their non-residential parent. It was necessary to consider the best interests of the children, particularly given the respondent's lack of engagement. The court was also required to assess the implications of the respondent's conduct on the children's welfare and future development.
Judge Bowrey concluded that the best interests of the children would be served by awarding sole parental responsibility to the mother, Ms Haberlin. The court found that the respondent's lack of engagement in the proceedings demonstrated an unwillingness to participate in the children's lives. Consequently, the court ordered that the mother have sole parental responsibility over major long-term issues, including education, health, religion, and cultural upbringing. The court also directed that the mother keep the father informed of major decisions affecting the children. Living arrangements were set such that the children would reside with the mother, with agreed-upon visitation schedules with the father. Additionally, the court established rules for communication between the children and their non-residential parent, and it mandated that both parents refrain from certain detrimental behaviours in the presence of the children.
The final orders included the discharge of previous orders, granting sole parental responsibility to the mother, specifying living arrangements and communication protocols, and imposing obligations on both parents to protect the children from harm. The Independent Children's Lawyer was discharged from the case.
Orders
Orders of the court
TVC 1190 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HABERLIN
Applicant
AND:
MR EZARD
Respondent
ORDER MADE BY:
JUDGE BOWREY
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1. The Orders dated 20 April 2015 be discharged.
Parenting responsibility
2. The mother have sole parental responsibility in relation to the major-long term issues affecting the children, X born in 2010 and Y born in 2012 (“the children”), including but not limited to:-
(a) The children’s education (both current and future);
(b) The children’s health;
(c) The children’s religion and cultural upbringing;
(d) The names by which the children are ordinarily known; and
(e) Any changes to the children’s living arrangements which make it significantly more difficult for the children to spend time with either parent.
3. In exercising sole parental responsibility, the mother must keep the father informed at all times as to the major long-term issues in relation to the children and specifically:-
(a) Attempt to communicate to the father the decision to be made, should she be able to do so by forwarding an email to the father at an email address to be provided by the father and to be kept current by the father; and
(b) Inform the father of any final decision made within forty-eight (48) hours of the making of the decision by forwarding an email to the father at an email address to be provided by the father and to be kept current by the father.
4. These Orders operate as authority for all care providers (including but not limited to doctors, health professionals, counsellors) to provide any information concerning the children to both the father and the mother. However the father is restrained from providing any instructions to any medical or health provider not to proceed or withdrawing consent to any treatments authorized by the mother without the mother’s written agreement or order of the Court. Any costs incurred in obtaining any documentation from any care provider will be the responsibility of the parent making the request.
5. This Order is authority for the children’s school or day care to provide both the mother and the father with copies of all school reports, any other reports on the children’s progress and behaviour issues, school newsletters and parent letters within the guidelines of that organisation. The mother and father are to authorize the children’s school or day care to provide copies of such documents as required from time to time.
Living arrangements
6. The children live with the mother.
7. The children spend time with the father as agreed between the parties in writing.
8. The father shall not remove the children from any place the children have been placed by the mother, including but not limited to schools and extra-curricular activities without the mother’s written consent or order of the Court.
Telephone communication
9. The children have telephone communication with the parent they are not living with at all times as may be agreed between the parents in writing.
10. The children be at liberty to have telephone communication with the parent they are not living with at all reasonable times that they express a wish to do so.
Obligations of the parents
11. That each parent be restrained and injunction issue restraining them from:-
(a) Denigrating the other parent, their partner, and their family to or in the presence of the children. Both parents use their best endeavours to ensure that no other person denigrates the mother or the father or their respective partners and families to or in the presence of the children;
(b) using prohibited drugs or being under the influence of prohibited drugs in the presence of the children, or within forty-eight (48) hours prior to the children entering their care;
(c) Taking prescribed drugs in excess of the prescribed dosage in the presence of the children or while the children are in their care; and
(d) Exposing and/or subjecting the children to domestic violence.
12. The Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
A. The Court was provided with a document signed by the Applicant Mother and the Independent Children’s Lawyer, containing the Orders which have been made.
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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