HARLE & NORCOTT

[2018] FCCA 2551

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARLE & NORCOTT [2018] FCCA 2551

Catchwords:
FAMILY LAW – Interim parenting – where mother and Independent Children’s Lawyer consented to orders – where father opposes orders in relation to his time with the children.

Legislation:

Family Law Act 1975 (Cth), s.65DA(2)

Applicant: MS HARLE

Respondent: MR NORCOTT

File Number: WOC 276 of 2018

Judgment of: Judge Altobelli

Hearing date: 10 August 2018

Date of Last Submission: 10 August 2018

Delivered at: Wollongong

Delivered on: 10 August 2018

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

1. Orders be made in accordance with the document entitled ‘Short Minutes of Orders’ marked “A” dated this day 10 August 2018 and attached hereto.

2. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

3. The proceedings be adjourned to 5 October 2018 at 9:30am for Mention via Genesis Teleconference:

   (a)Dial the Teleconference Access number –;

   (b)At the prompt, enter the passcode: (please ensure you enter the # key after the numbers)

THE COURT NOTES THAT:

A.In relation to Order 1, the Order is made by consent as between the Independent Children’s Lawyer and the Applicant Mother, but in relation to the Father is it an Order the Court makes.

B.The purpose of the adjourned date is to review the progress of the Father’s time spent with the children.

IT IS NOTED that publication of this judgment under the pseudonym Harle & Norcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Family Law Act, 1975.

In the Federal Circuit Court of Australia

at Wollongong   No.      WOC276 of 2018

Between  

Ms HARLE
Applicant

And

Mr NORCOTT
Respondent

And

The Independent Children’s Lawyer

SHORT MINUTES OF ORDERS.

THE PARENTS CONSENT TO THE FOLLOWING ORDERS:-

Orders for Parental Responsibility.

1.That the Mother and the Father are to have equal shared parental responsibility for the children:

[W] Born on 2007
        [X] Born on 2009
        [Y] Born on 2011
        [Z] born on 2013

in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:-

(a)the education of the children – both current and future;

(b)the religion of the children;

(c)the health of the children;

(d)any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.

2.That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.

3.That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the children and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children

4.That each parent be entitled to attend all events involving the children including, but not limited to:-

(a)sporting fixtures;

(b)extra curricular activities that allow for parental attendance or participation;

(c)school functions and events that allow for parental attendance or participation – AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.

Orders for day to day care, welfare and development.

5.That the Father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children lives with or spends time with the Father.

6.That the Mother shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children lives with or spends time with the Mother.

Orders for parental communication:

7.That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-

(a)any medical problems or illness suffered by the children, whilst in the care of the Father;

(b)any medication that has been prescribed for the children;

(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

(d)any social, school or religious functions which the children is to attend;

(e)the residential address of the Father;

(f)the telephone contact number of the Father;

(g)any other matter relevant to the welfare of the children.

8.That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-

(a)any medical problems of illness suffered by the children, whilst in the care of the Mother;

(b)any medication that has been prescribed for the children;

(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

(d)any social, school or religious functions which the children is to attend;

(e)the residential address of the Mother;

(f)the telephone contact number of the Mother;

(g)any other matter relevant to the welfare of the children.

Orders for living with each parent:-

9.That the children shall live with the Father as follows:-

(a) Order that the father spend time with the children under supervision at the Catholic care contact service, Suburb A, on one day each fortnight and to facilitate such time;

aa)Each party must:

i.Contact the Catholic care contact service within seven (7) days to arrange an appointment for assessment for suitability

ii.Attend the assessment

iii.Comply with any appointment made by the Catholic care contact service

iv.Comply with all reasonable rules of Catholic care contact service

v.Comply with all reasonable requests or directions of the staff of Catholic care contact service

vi.If Catholic care contact service following its intake procedure is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court

bb)If the parties are accepted by Catholic care contact service following intake procedure then the father is to spend time with the children each alternate Saturday at times nominated by Catholic care contact service and such time is to be implemented by the mother delivering the children to Catholic care contact service at the start of the father’s time with the children and collecting the children from the same place at the end of the father’s time.

cc)In the event that Catholic care contact service is only able to/prepared to offer supervised time at times that differ from the Saturday proposed above, then the time under supervision shall occur at the times which can be provided by the Catholic care contact service

dd)The father shall each pay the fees nominated by Catholic care contact service for the provision of its service.

(b)     Following 2 supervised contact visits the father shall spend time with the                  children each alternate Saturday for a period of two Saturdays   unsupervised from 10am until 6pm.
(c)     At the conclusion of order 9(b) above, the children shall spend time with the father each alternate weekend from 5pm Friday until 5pm Sunday.

(d)Half of the gazetted NSW School Holiday periods and failing agreement as to which half, the father shall have the first half, but only once order 9(c) commences. For a period of 3 hours on the children’s birthday if the children are ordinarily in the mother’s care as agreed and failing agreement, between 4pm and 7pm.

(e)For a period of 3 hours on the father’s birthday, if the children are ordinarily in the mother’s care, as agreed and failing agreement, between 4pm and 7pm.

(f)Father’s Day from 6pm the day before until 6pm on Father’s day

(g)From 6pm 24 December 2018 until 10am 26 December 2018 and each alternate year thereafter;

(h)From 10am 26 December 2019 until 10am 28  December 2019 and each alternate year thereafter.

(i)By telephone each Monday and Thursday between 7pm and 8pm.

(j)Any other time as agreed.

10.The children shall live with the mother as follows:

(a)   Half of the gazetted NSW School Holiday periods and failing agreement as to which half, the mother shall have the second half, but only once order 9(c) commences.

(b)  For a period of 3 hours on the children’s birthday if the children are ordinarily in the father’s care as agreed and failing agreement, between 4pm and 7pm.

(c)  For a period of 3 hours on the mother’s birthday, if the children are ordinarily in the father’s care, as agreed and failing agreement, between 4pm and 7pm.

(d)  Mother’s Day from 6pm the day before until 6pm on Mother’s day

(e)  From 6pm 24 December 2019 until 10am 26 December 2019 and each alternate year thereafter;

(f)   From 10am 26 December 2018 until 10am 28 December 2018 and each alternate year thereafter.

(g)  At all times the children do not ordinarily reside with the father.

(h)  Any other time as agreed.

11.That for the purpose of communicating information between the parents, the Father and the Mother shall communicate by:

(a)     telephone;

(b)    text

(c)    email

12.That for the purposes of the facilitation of these Orders the mother shall deliver the children to the father at his residence, or any other agreed place, at the commencement of the time the children are to be with their father, and at the conclusion of the time the children spend with the father the father is to deliver the children to the mother at her residence or another agreed place.

13.That within 12 months from the date of these order the parties shall enrol and complete courses provided by either Relationships Australia, Catholic Care, Family Relationship Centres, or any other approved service provider on:

a.Parenting after separation –

b.Managing anger

c.1,2,3 Magic  parenting course or

d.A course on managing children’s behaviour.

And at the conclusion of each course provide the ICL and other party copies of their certificate for completion of each course.

14.Both parties are restrained by injunction from administering corporal punishment upon the Children, and will ensure that no other person does so either

FEDERAL CIRCUIT COURT

OF AUSTRALIA
AT WOLLONGONG

WOC 276 of 2018

MS HARLE

Applicant

And

MR NORCOTT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I note that the issue that the Court had to decide today was limited to the matters contained in Orders 9(a) and (b) of the Consent Orders.  The rest was agreed to in its entirety.  The Orders that I have made provide that the Father should spend two supervised visits with the children using the facilities at CatholicCare at Suburb A.  Thereafter, the Father would have two visits with the children each alternate Saturday unsupervised from 10:00am until 6:00pm, and thereafter the children would spend time with him each alternate weekend and half the school holidays.

2. The Father expressed a degree of frustration, I think perhaps understandable, about why he had to be supervised, even for a relatively short period of time before progressing to unsupervised time.  Both the Mother and the Independent Children's Lawyer were ad idem on the rationale for it, and that is that it provides for the relationship with the Father to be set back on foot in a systematic, predictable and child-focused fashion. 

3. I had regard to the material that both parents have filed, indeed quite substantial material.  I have observed that they presented today as being far more able to communicate about issues than they present in their respective affidavits.  The distinct impression that is formed from the evidence before the Court, though, is that there has been a problem with consistency, and that, coupled with difficulties in communication that exists between the parents meant they have not been able to sort this out on their own.

4. Having an Independent Children's Lawyer has refocused their efforts, as had the reality of being in Court.  A number of concerns that they each raised in their affidavits in relation to the other’s parenting of the children are, I am satisfied, adequately addressed through the other matters dealt with in the Orders that were not in dispute. 

5. As I mentioned before, there is also the protective issue of an Independent Children's Lawyer’s involvement as well as the Court’s scrutiny.  The remaining issue that really cannot be dealt with by way of orders is what the Court accepts appears to have been a past lack of consistency in the Father’s time with the children. 

6. Whatever might have been the causes for that, and it is unproductive today to go into that material, the Court is satisfied both as to the need and the potential enormous benefit for these children of, in effect, resetting the arrangements and starting again with two visits only that are supervised that provide for the children a transition back into regular care with their father, which does not provide an insurmountable obstacle for him and which then sets this family back on track.

7. Whilst the Court recognises Mr Norcott’s frustration, nonetheless, this is a small and not onerous step which the Court believes will ultimately benefit the children enormously.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 11 September 2018