FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halleran & Saffold [2024] FedCFamC2F 954
File number(s): HBC 92 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 24 July 2024 Catchwords: FAMILY LAW – parenting – discrete issue for Court to determine – whether children live with father or mother – parents living in different states – family violence and illicit substance allegations against father by mother – mother’s history of ill-health – need for stability and avoidance of untested long-term care with the mother in a new environment – no risk of unacceptable harm if children remain living with the father – order made for children to live with father – alternate order made for equal time and live with if mother relocates to Tasmania Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA & 65DAC Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 64 Date of last submission/s: 30 April 2024 Date of hearing: 22-23 April 2024 Place: Hobart Solicitor for the Applicant: Mr Saric, Jim Saric Law Solicitor for the Respondent: Ms Watson, Tasmania Legal Aid Counsel for the Independent Children's Lawyer: Mr McKenna The Independent Children's Lawyer: Ms Pagett, Pagett & Associates ORDERS
HBC 92 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALLERAN
Applicant
AND: MS SAFFOLD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders relating to X, born in 2015, and Y, born in 2016, (collectively “the children”) be discharged.
2.Mr Halleran (“the Father”) and Ms Saffold (“the Mother”) (collectively “the parents”) have equal shared parental responsibility for the children in relation to major long-term issues AND for decision making in accordance with this Order:
(a)“Major long-term issues” has the meaning provided in s 4 of the Family Law Act 1975 (Cth) and includes the children’s education, health, extra-curricular and recreational activities, and changes to their living arrangements;
(b)The parent who intends to make a major long-term decision in relation to either or both children must provide the other parent 14 days written notice of the intended decision (“the Notice”);
(c)The parent receiving the Notice will consider the Notice and provide their views about to the other parent about the intended decision within 7 days of receiving the Notice;
(d)Upon receipt of the other parent's views, the parent who gave the Notice will consider same and inform the other parent of what they consider to be in the best interests of the child or children and the decision that ought be made;
(e)If the parents are in agreement about the intended decision they will implement that agreement; and
(f)If the parents are in disagreement about the intended decision they will participate in family…
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CaseChat Overview and Summary
The court concluded that while the allegations of family violence and substance use by the father were serious, there was insufficient evidence to find that the children were at risk of unacceptable harm if they remained living with their father. The mother's history of ill-health and the need for stability for the children were also significant factors. Consequently, the court ordered that the children would primarily live with their father but would spend specified periods during school holidays and at other times with their mother. The court also made orders for communication between the children and their parents, travel arrangements, and other parenting-related matters. Personal protection orders were made to safeguard the children from exposure to family violence and substance use.
The final orders included arrangements for equal shared parental responsibility, specific visitation schedules, communication protocols, and conditions to ensure the children's safety and well-being. Both parents were required to engage in parenting education and support services. The court also noted that a police officer could arrest without warrant if any of the personal protection orders were breached. Costs of the proceedings were to be borne by each party individually. The Independent Children's Lawyer's appointment was extended to facilitate the implementation of these orders.
Orders
Orders of the court
HBC 92 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HALLERAN
Applicant
AND:
MS SAFFOLD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1. All previous parenting Orders relating to X, born in 2015, and Y, born in 2016, (collectively “the children”) be discharged.
2. Mr Halleran (“the Father”) and Ms Saffold (“the Mother”) (collectively “the parents”) have equal shared parental responsibility for the children in relation to major long-term issues AND for decision making in accordance with this Order:
(a) “Major long-term issues” has the meaning provided in s 4 of the Family Law Act 1975 (Cth) and includes the children’s education, health, extra-curricular and recreational activities, and changes to their living arrangements;
(b) The parent who intends to make a major long-term decision in relation to either or both children must provide the other parent 14 days written notice of the intended decision (“the Notice”);
(c) The parent receiving the Notice will consider the Notice and provide their views about to the other parent about the intended decision within 7 days of receiving the Notice;
(d) Upon receipt of the other parent's views, the parent who gave the Notice will consider same and inform the other parent of what they consider to be in the best interests of the child or children and the decision that ought be made;
(e) If the parents are in agreement about the intended decision they will implement that agreement; and
(f) If the parents are in disagreement about the intended decision they will participate in family dispute resolution unless exempted from doing so.
3. The children live with the Father.
4. The children spend time with the Mother on the following basis:
(a) During school holidays, unless otherwise agreed by the parents:
(i) Commencing from the first Saturday of each Tasmanian gazetted public school term 1, 2 and 3 school holidays for the duration of the school holidays, with the children to return to the Father by 4:00pm on the Saturday immediately prior to the Children returning to school;
(ii) For the Christmas holiday period in 2024 and each alternate year thereafter, from the first Saturday of the Tasmanian public school Christmas holidays for a period of 18 nights (being 19 consecutive days); and
(iii) For the Christmas holiday period in 2025 and each alternate year thereafter, from 4:00pm on the 19th day of that school holiday period until 4:00pm on the Saturday immediately prior to the children returning to school.
5. In addition to Order 4, if the Mother is travelling to Tasmania as agreed between the Parents in accordance with the following:
(a) On up to 5 occasions each calendar year;
(b) For periods not exceeding 5 consecutive nights as agreed;
(c) The Mother must give the Father 14 days' notice of her intention to spend time with the children in accordance with this Order; and
(d) In the absence of agreement, time will occur from the conclusion of school on a Friday (or 4:00pm if not a school day) to the return to school Monday (or 4:00pm if not a school day)
6. The children will spend time with the mother at such other times and other days as may be agreed between the parents in writing.
7. If the parents live within 30km of each other in the greater City B area, the children will live equally with the parents and as follows:
(a) Changeover will commence once a week on a Friday; and
(b) The time for changeover is the conclusion of school on Friday or if not a school day 4:00pm.
Costs of the children’s travel
8. The parents shall pay the following costs associated with the children's return airfares between City B and Melbourne while the mother resides in Victoria and when spending time in accordance with Order 4 of these Orders approximately equally AND FOR THIS ORDER:
(a) The Mother will purchase the children’s airfare for the flight departing Tasmania;
(b) The Father will purchase the children’s return airfare for the return flight to Tasmania;
(c) The parents will use their best endeavours to purchase the lowest price ticket on days and times that enable each parent to comply with these Orders;
(d) The children’s airfare tickets must include a carry on and checked baggage allowance for each of the children; and
(e) Until the age of 12 or such other age as the parent's agree, the children must be accompanied by one of the parents on each flight to and from their intended destination. For the avoidance of doubt, this obligation is one to be shared equally by the parents.
Communication between the children and parents
9. The parents will facilitate the children's communication with the parent with whom they are not living/spending time with (“other parent”) in accordance with these Orders as follows:
(a) As agreed between the parents and failing agreement, not less than three times per week via video call on Tuesday, Thursday and Sunday between 5:00pm and 5:30pm.
(b) At all other times requested by the children with such calls to occur using the children's iPad with FaceTime or similar mode of communication and these calls will be facilitated by the parent the children are living/spending time with; and
(c) For special occasions as set out in Order 11 of these Orders, if the children are not already in the other parent's care for those special occasions.
10. For the purposes of enabling communication between children and other parent each parent must:
(a) Provide a quiet space for the children to call free from other distractions, ensure any relevant communications devices are charged and ready, engage the call connection and then hand it to the children for the purposes of communication and leave the room;
(b) Provide to the other parent a telephone number or other such required contact information to engage in video calls, to the other for the purposes of any such communication; and
(c) In the instance of a change of a contact telephone number or other information required for the purposes of engaging in video calls, each parent will advise the other within 48 hours of the same.
Communication with the children on special occasions
11. On the following special occasions, unless otherwise agreed, communication will occur between the children and parents as follows:
(a) On Mother's Day and Father's Day: If the children are not living/spending time with the Mother on Mother's Day and Father on Father's day: The children will communicate with that parent at 10:00am, with the parent the children are living/spending time with to initiate a video call to the other parent to enable the children to speak to the other parent.
(b) X and Y's birthdays:
(i) For X's birthday, the parent who does not have the children living or spending time with them will initiate a video call to speak with X prior to school on school days and on non-school days at 10:00am.
(ii) For Y's birthday, the parent who does not have the children living or spending time with them will initiate a video call to speak with Y prior to school on school days and on non-school days at 10:00am.
(c) For C's birthday (the children's sibling): The parent the children are living/spending time with will facilitate a video call between the children and their half sibling C.
(d) For Easter Sunday and Christmas Day: The parent that does not have the children living/spending time with them will initiate a video call to the children at 10:00am.
Communication between the parents
12. The parents will communicate with the other via text message or an agreed parenting application only with the exception that in circumstances of emergency in relation to either of the children in which case they will telephone the other as soon as practicable providing information to the other parent relevant to the child/children's circumstances (e.g., treatment, including any diagnosis, medication prescribed and status of the child/children's general wellbeing).
13. All communication between the parents is to be civil, respectful and child focused in nature.
Changeover arrangements
14. For any changeover to give effect to living and spend time arrangements for the children:
(a) If changeover is occurring on a school day, changeover occurs at school;
(b) If not a school day, changeover will occur at City B or Melbourne airport or such other place as the parents agree;
(c) Each parent will ensure handover is prompt and that any words spoken are polite and not related to family law matters; and
(d) Each parent may nominate a third party known to each other and the children to attend and facilitate handover provided that is communicated to the other parent before handover.
Parental authority and related
15. The parents must do all things necessary to ensure both are each named on the children's:
(a) School or extra-curricular enrolments; and
(b) Medical, health and allied health service contact and/or consent authority AND for this subparagraph, within 7 days of the date of these Orders, the parents are each to disclose to the other all medical, health and allied health services the children have engaged in.
16. These Orders act as an authority for the parents to:
(a) Communicate with the children's school and receive all relevant communications including in relation to the children including, but not limited to, reports, attendance records, newsletters, school photographs; and
(b) Communicate with and obtain information in relation to each of the children from the children's treating allied health or medical practitioner(s).
Personal protection orders and related
17. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the parents are restrained from consuming any illicit drugs (defined to mean and include any drug that is illegal to have (for example, cannabis, methamphetamine, and cocaine)), the non-medical use of drugs that are legally available but not prescribed to a parent (such as pain killers and sleeping pills) and prescription drugs used not in accordance with the prescription while the children are in their care or for the twelve (12) hours prior to the children coming into their care, or allowing the children to remain in the presence of any third party if the parent caring for the children reasonably suspects that the third party is doing so.
18. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, when the children are living or spending time with a parent that parent is restrained from drinking alcohol to excess (defined to mean having a blood alcohol concentration (BAC) above 0.05% (0.05g of alcohol in every 100ml of blood)) at all times the children are in their care and for the twelve (12) hours prior to the children coming into their care.
19. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the Father is restrained from exposing the children or the Mother to family violence as defined by s 4AB of the Family Law Act 1975 (Cth).
20. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children and the Mother, the Father is restrained from entering onto the Mother's place of residence.
21. For the personal protection of the parents, and by way of ancillary Order, each parent is restrained by injunction from:
(a) Denigrating, belittling, abusing, intimidating, harassing and/or rebuking the other parent or members of their respective families to and/or within the hearing of the children or either of them;
(b) Discussing these proceedings or any documents prepared in relation to these proceedings save for explaining the living and spend time with provisions of these orders, to and/or within the hearing of the children or either of them;
(c) Allowing the children to remain in the presence of a third party doing the things referred in subparagraphs (a) and (b); and
(d) Knowingly permitting the children or either of them having access to any documents prepared in relation to these proceedings or any associated proceedings.
Ongoing support for the children
22. Unless they have already done so, within 7 days the parents must arrange to obtain a mental health care plan for the children and obtain a referral for them to attend a psychologist AND for this Order, each parent must follow the reasonable directions of the children's psychologist and facilitate the children's attendance at same until such time as the children's psychologist deems it appropriate to cease engagement and confirms the same in writing to both parents.
Parenting education and supports
23. The Father must do all acts and things including but not limited to signing all documents necessary to:
(a) Enrol in within 14 days of the date of this Order and thereafter complete the Tuning into Kids parenting support program and endeavour to complete same within six (6) months of the date of these Orders; and
(b) Contact D Organisation within 14 days of the date of these Orders to arrange for counselling in relation to his use of alcohol and illicit substances AND follow all reasonable directions of that service.
24. The Father will provide to the Mother confirmation of his enrolment and completion of the Tuning into Kids and within six (6) months of the date of these Orders a letter from D Organisation confirming he has engaged with that service.
25. The Mother continue to engage with her psychiatrist Dr E of F Centre in Suburb G, Victoria until such time as her psychiatrist deems it appropriate to cease engagement.
Disclosure
26. In the event any of the following applies to the Father, he must within 48 hours of same occurring, notify the Mother in writing and to the extent he is lawfully permitted to do so, provide to the Mother documentary evidence confirming same:
(a) Named as the applicant or respondent or person restrained or person protected (or words to those effect) in a Family Violence Order, Police Family Violence Order or Restraint Order;
(b) Charged with an offence relating to a Family Violence Order, Police Family Violence Order or Restraint Order;
(c) Charged with a Family Violence offence;
(d) Charged with drug and/or alcohol related offence; and/or
(e) Charged with an offence involving a person the father is in relationship with including, for example, a common assault charge involving an intimate partner or member of family.
Publication of these Orders & related matters
27. Each of the parents and the Independent Children's Lawyer may provide a copy of these Orders to:
(a) Any school the children attend; and
(b) Any medical or allied health professionals engaging with the children AND for this subparagraph within 7 days of the date of Order, each parent is to provide to the other the names and contact details of any medical or allied health professional the children is engaged with or has engaged with (in the 12 months prior to date).
Review
28. Prior to X commencing his year 7 education, the parents will engage in Family Dispute Resolution with a Family Dispute Resolution Practitioner to review the children's ongoing parenting arrangements and these Orders.
Costs
29. The parents are each individually responsible for their costs of and incidental to these proceedings.
Independent Children's Lawyer appointment
30. The Independent Children's Lawyer’s appointment is extended to continue for a period of two weeks from the date of these Orders.
THE COURT NOTES THAT:
A. Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the order for personal protection in Orders 17, 18, 19 or 20 has been breached.
B. Order 30 of these Orders has been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 24 July 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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