FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADCRAFT & HADCRAFT | [2020] FCCA 836 |
| Catchwords: FAMILY LAW – Parenting – Whether the mother has committed family violence– whether the mother has unduly influenced the children’s relationship with the father - whether the father has committed family violence – whether the father’s alcohol consumption is in excess to effect his ability to parent – whether the current arrangement will lead to the children having no relationship with their father - whether there should be a change of residence and a 90 day moratorium should be implemented. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65 DAA Evidence Act 1995 (Cth) s.140 |
| Cases cited: Amador & Amador [2009] FamCAFC 196 Blinko & Blinko [2015] FamCAFC 146 |
| Applicant: | MS HADCRAFT |
| Respondent: | MR HADCRAFT |
| File Number: | BRC 2275 of 2018 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 26 & 27 August 2019 and 22 & 23 & 24 January 2020 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 16 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nielson |
| Solicitors for the Applicant: | Callaghan Legal |
| Counsel for the Respondent: | Ms McLennan |
| Solicitors for the Respondent | Hardings Gulhane Solicitors |
| Counsel for the Independent Children’s Lawyer | Ms Pendergast |
| Solicitors for the Independent Children’s Lawyer | Legal Aid Queensland |
ORDERS
That all previous orders and parenting plans be discharged.
That the father Mr Hadcraft (the father) have sole parental responsibility for the major long-term issues for the children X born in 2005 and Y born in 2007 (the children).
That the children live with the father.
For the purposes of facilitating the changeover from the mothers to the father’s care-:
(a)The mother will deliver the children to the father at 3.00pm on the day these orders are made AND in the event the children are not delivered at 3.00pm in accordance with these orders a recovery order will be made immediately upon the father or his lawyer notifying chambers in writing
(b)The mother is restrained from collecting the children from school, or causing anyone on her behalf to do so, except as permitted by these orders;
(c)The father’s legal representatives will cause a copy of these orders to be emailed forthwith to the children’s school.
That the father will contact child dispute services, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane by no later than 10.00am on Friday 17 April 2020 to arrange for a family consultant to explain these orders to the children via whatsoever means the senior family consultant child dispute services deems appropriate having regard to the current COVID 19 pandemic. The family consultant has liberty to inspect the court file and in particular these orders and these reasons for judgement.
That Ms Hadcraft (the mother) will have no time or communication with the children…
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- AGLC
- Hadcraft and Hadcraft [2020] FCCA 836
- Case
- [2020] FCCA 836
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the primary caregiver for the children and the allocation of parental responsibility for major long-term issues. Furthermore, the court needed to establish a framework for the children's reintroduction to the mother's care, considering a period of no contact and therapeutic interventions for both the mother and the children. The court also had to address communication, information sharing, and the practicalities of changeovers between parents.
In its decision, the court discharged all previous orders and parenting plans. It ordered that the father have sole parental responsibility for the major long-term issues concerning the children and that the children live with the father. A three-month moratorium was imposed on any time or communication between the mother and the children, during which time the father was to arrange for the children, himself, and the mother to engage with the Family Bridges program. The mother was also ordered to attend therapeutic counselling. Following the moratorium and successful reintroduction facilitated by the Family Bridges program, a phased schedule for the children spending time with the mother was set out, along with provisions for ongoing communication and information sharing between the parents. The court also made orders regarding changeovers, parental conduct, and the provision of information to schools and health practitioners.
Orders
Orders of the court
1.
That all previous orders and parenting plans be discharged.
2.
That the father Mr Hadcraft (the father) have sole parental responsibility for the major long-term issues for the children X born in 2005 and Y born in 2007 (the children).
3.
That the children live with the father.
4.
For the purposes of facilitating the changeover from the mothers to the father’s care-:
(a) The mother will deliver the children to the father at 3.00pm on the day these orders are made AND in the event the children are not delivered at 3.00pm in accordance with these orders a recovery order will be made immediately upon the father or his lawyer notifying chambers in writing
(b) The mother is restrained from collecting the children from school, or causing anyone on her behalf to do so, except as permitted by these orders;
(c) The father’s legal representatives will cause a copy of these orders to be emailed forthwith to the children’s school.
5.
That the father will contact child dispute services, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane by no later than 10.00am on Friday 17 April 2020 to arrange for a family consultant to explain these orders to the children via whatsoever means the senior family consultant child dispute services deems appropriate having regard to the current COVID 19 pandemic. The family consultant has liberty to inspect the court file and in particular these orders and these reasons for judgement.
6.
That Ms Hadcraft (the mother) will have no time or communication with the children for a period of 3 months from the date of this order (the moratorium).
7.
That the father and the mother will do all things necessary to ensure that the children have no time or communicate with their older siblings, Ms B and Ms C during the moratorium.
8.
The father will do all things reasonably necessary to arrange for the children, the father and mother to engage with the Family Bridges program.
9.
The cost of the family bridges program will be shared equally by the mother and father.
10.
The mother will do all things reasonably necessary to attend upon Ms D for the purpose of engaging in therapeutic counselling to assist her in identifying behaviours that are detrimental to the children and learning strategies to ensure that those behaviours do not continue into the future.
11.
That the mother and father have liberty to provide the following documents to any mental health practitioner or therapist that they may consult for the benefit of the children:
(a) Affidavit of Ms E filed 7 September 2018;
(b) Family report of Ms E dated 3 June 2019;
(c) Affidavit of Dr F filed 8 February 2019;
(d) Affidavit of Dr G filed 7 August 2019.
12.
During the moratorium the father will provide the mother with a weekly written update about the children and their activities via email as recommended by the Family Bridges program.
13.
At the conclusion of the moratorium the children will be reintroduced to the mother and their siblings and spend time with and communicate with them as recommended by the coordinator of the Family Bridges program Mr H.
14.
In the event the family bridges program can no longer be utilised after a period of 3 months then the father will do all things reasonably necessary to cause the children to attend upon Ms J from K Pty Ltd (the therapist), and if Ms J is unavailable, such other therapeutic services as may be determined by the father, for the purpose of preparing the mother and the children for the reintroduction of the children’s time and communication with the mother and their siblings.
15.
Upon the successful completion of the reintroduction of the children to the mother and siblings the children will spend time with the mother as follows:
(a) For a period of 2 months, from 9:00am until 5:00pm each Sunday;
(b) Thereafter, for a period of 2 months, each alternate weekend from after school Friday until the commencement of school on Monday;
(c) Thereafter, each alternate weekend during school terms from after school Thursday, or 3:00pm if not a school day, to commencement of school Monday, or 9:00am if not a school day; and
(d) For the first half of the children’s school holidays in even-numbered years in the second half in odd-numbered years and
(i) When a parent’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5:00pm on the date calculated to be half of the holidays;
(ii) When a parent’s time falls in the second half of the holidays, from 5:00pm on the date calculated to represent half of the holidays when spending time shall end at 9:00am on the day the school term recommences;
(iii) School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9:00am on the day the children returned to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the mother shall retain the additional night
(e) The mother and the father will arrange weekend time when necessary to ensure that the children spend the weekend upon which Father’s Day falls with the father and the weekend upon which Mother’s Day falls with the mother;
(f) After the conclusion of the moratorium and the mother has been successfully reintroduced to the children the children will have telephone, email and text communication with the parent they are not spending time with at all reasonable times as they may request, but including telephone communication at 6:00pm each Wednesday on each child’s birthday, with the parent they are spending time with to initiate the call.
16.
The father will, within 7 days of the date of these orders provide the children’s school and their sports coaches with copies of the following documents in order that children’s teachers and coaches are informed about the changes taking place in the children’s lives, and in order that they may offer the children such support as they deem appropriate during the process:
(a) These orders,
(b) The reasons for judgement
17.
Changeover shall occur whenever possible at school but otherwise at the McDonald’s family restaurant nearest the home of the parent receiving the children
18.
Neither parent will denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children, and failing their compliance with such a direction to remove the children from that environment immediately
19.
During the time the children are with either parent that parent shall:
(a) Respect the privacy of the other parent not question the children about personal life of the other parent; and
(b) Speak of the other parent respectfully.
20.
the parties shall keep each other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this order shall serve as such authority (once the moratorium is over)
21.
Each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
22.
The parties shall keep the other informed of any school, educational facility or extracurricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase for photographs, and this order shall serve such authority.
23.
If there is a cost associated with the provision of any information or document under these orders from the children’s doctors, health care and other treatment providers or school, educational facility or extracurricular activity provider expense shall be borne by the parent requesting information.
24.
Each parent shall keep the other parent informed at all times of the contact mobile number and email address.
25.
Subject to the conditions imposed upon by the children’s schools/extracurricular activity providers, and in the mother’s case, after the moratorium period and the therapy pursuant to these orders, these orders authorise both parents to attend school functions and extracurricular activities which parents ordinarily attend, including but not limited to carnivals, sports days, fêtes, concerts, plays and parent/interviews.
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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