FAMILY COURT OF AUSTRALIA
| HARTFORD & ANSILDA | [2009] FamCA 23 |
| FAMILY LAW – CHILDREN – parenting orders – Magellan – young child – allegations without foundation – credit findings against mother – risk to child’s emotional well-being – change of residence |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC, 60CC(2),(3),(4) and (4A), 61DA, 61DA(2), 65DAA(1), 65DAA(2) |
| M and M (1988) CLR 69 B and B (1993) FLC 92-357 Re W (Sex abuse: standard of proof) (2004) FLC 93-192 WK v SR (1997) FLC 92-787 K v B (1994) FLC 92-478 W v W (abuse allegations; unacceptable risk) (2005) FLC 93-235 N and S and the Separate Representative (1996) FLC 92-655 S v S [1993] NZFLR 657 |
| FATHER: | MR HARTFORD |
| MOTHER: | MS ANSILDA |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 10686 | of | 2007 |
| DATE DELIVERED: | 22 January, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BROWN J |
| HEARING DATE: | 1, 2, 3, 4, 5 and 8 September, 2008 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Mawson SC, with Mr. Wood |
| SOLICITOR FOR THE FATHER: | Gillian Coote Family Law |
| COUNSEL FOR THE MOTHER: | Mr. Werner |
| SOLICITOR FOR THE MOTHER: | DKP Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr. Eidelson |
| INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
That all previous parenting orders and injunctions in respect of the child … born … December, 2006 be discharged.
That the father have sole parental responsibility for the child.
That the father consult the mother prior to making a decision about :
(a)the kindergarten or school in which to enrol the child and any subsequent change of kindergarten or school;
(b)any significant medical intervention for the child (save in an emergency and not including routine day-to-day medical intervention); and
(c)any proposed international travel with the child.
That the child live with the father.
That the mother be and is hereby restrained, by herself, her servants and agents from removing the child from the father’s possession or the possession of any person with whom he has placed the child, save pursuant to these or subsequent orders, or the father’s specific agreement.
That until the child commences school, and subject to any agreement between the parties to the contrary, the child spend time with the mother as follows :
(a)each alternate weekend from 9:00 am. on Saturday until 5:00 pm. on Sunday, commencing on 31 January, 2009;
(b)from 9:00 am. until 5:00 pm. on each alternate Thursday, commencing on 5 February, 2009;
(c)from 9:00 am. on each alternate Monday until 5:00 pm. on the following Tuesday, commencing on 26 January, 2009;
(d)if the child would not otherwise be with the mother on Mothers’ Day, from 9:00 am. until 5:00 pm. on Mothers’ Day;
(e)if the child would not otherwise be with the mother on the child’s birthday, for four hours on her birthday at times to be agreed, and failing agreement from 10:00 am. until 2:00 pm.; and
(f)at such other times as are agreed between the parties.
That upon the child commencing school and subject to any…
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CaseChat Overview and Summary
The court was tasked with determining the extent of sole parental responsibility for the father, the primary residence of the child, and the specific time the child would spend with the mother. Further issues included the father's obligation to consult the mother on significant decisions regarding the child's education, medical treatment, and international travel, as well as provisions for communication between the mother and child, and the arrangements for changeovers. The court also had to consider orders restraining certain actions by the mother and the father, and the disclosure of court documents to various agencies and professionals.
In its reasoning, the court discharged all previous parenting orders and injunctions, granting the father sole parental responsibility for the child. The child was ordered to live with the father, with specific provisions for the mother to consult the father on key decisions. Detailed schedules were established for the child's time with the mother, both before and after commencing school, including provisions for holidays and special occasions. The court also made orders regarding communication, changeover arrangements, and the disclosure of information to educational and medical professionals, with specific restraints placed on the mother concerning medical examinations related to allegations of sexual abuse.
The court ordered that all previous parenting orders and injunctions be discharged. The father was granted sole parental responsibility, and the child was to live with him. The mother was to consult the father on specific decisions regarding the child's education, medical intervention, and international travel. Detailed time arrangements were set for the child to spend with the mother, and various restraining orders were made. The court also made orders concerning communication, changeovers, and the disclosure of information, with supervision of the implementation of these orders by a family consultant for twelve months.
Orders
Orders of the court
1.
That all previous parenting orders and injunctions in respect of the child … born … December, 2006 be discharged.
2.
That the father have sole parental responsibility for the child.
3.
That the father consult the mother prior to making a decision about :
(a) the kindergarten or school in which to enrol the child and any subsequent change of kindergarten or school;
(b) any significant medical intervention for the child (save in an emergency and not including routine day-to-day medical intervention); and
(c) any proposed international travel with the child.
4.
That the child live with the father.
5.
That the mother be and is hereby restrained, by herself, her servants and agents from removing the child from the father’s possession or the possession of any person with whom he has placed the child, save pursuant to these or subsequent orders, or the father’s specific agreement.
6.
That until the child commences school, and subject to any agreement between the parties to the contrary, the child spend time with the mother as follows :
(a) each alternate weekend from 9:00 am. on Saturday until 5:00 pm. on Sunday, commencing on 31 January, 2009;
(b) from 9:00 am. until 5:00 pm. on each alternate Thursday, commencing on 5 February, 2009;
(c) from 9:00 am. on each alternate Monday until 5:00 pm. on the following Tuesday, commencing on 26 January, 2009;
(d) if the child would not otherwise be with the mother on Mothers’ Day, from 9:00 am. until 5:00 pm. on Mothers’ Day;
(e) if the child would not otherwise be with the mother on the child’s birthday, for four hours on her birthday at times to be agreed, and failing agreement from 10:00 am. until 2:00 pm.; and
(f) at such other times as are agreed between the parties.
7.
That upon the child commencing school and subject to any agreement between the parties to the contrary, the child spend time with the mother :
(a) during school terms, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Tuesday, commencing on the first weekend in each school term;
(b) in the alternate week, from the conclusion of school on Monday until the commencement of school the following Tuesday;
(c) for one half of school holiday periods, at times to be agreed, and failing agreement :
(i) the first half in even years; and
(ii) the second half in odd years;
(d) for a period on the child’s birthday, at times to be agreed and, failing agreement :
(i) if the birthday falls on a school day, from the conclusion of the school day until 7:00 pm.; and
(ii) if the birthday falls on a non-school day from 10:00 am. until 2:00 pm.;
(e) if the child would not otherwise be with the mother on Mothers’ Day, from 9:00 am. to 5:00 pm. on Mothers’ Day; and
(f) at such other times as are agreed between the parties.
8.
That notwithstanding anything to the contrary in these orders, and subject to any agreement to the contrary between the parties, upon the child commencing school :
(a) the parent who does not have the child with him or her in the first half of the summer school holiday period shall spend time with the child from 2:00 pm. Christmas Day until 7:00 pm. Boxing Day;
(b) if the child would not otherwise live with the father on Fathers’ Day, the father shall spend time with her from 9:00 am. until 5:00 pm. on Fathers’ Day; and
(c) changeovers which occur at the commencement or conclusion of a school day take place at the school.
9.
That the mother communicate with the child by telephone, at reasonable times, PROVIDED THAT save with the consent of the father, the mother not telephone the child more than once each day.
10.
That on or before 30 January, 2009 each of the parties do all things reasonably necessary to apply to use M Contact Centre for changeovers, and as soon as a place becomes available at M Centre, but subject always to agreement between the parties to the contrary, changeovers which occur during M Centre hours of operation, take place at M Centre, until the child turns four, and the father be responsible for the costs of changeover at M Centre.
11.
That subject to any agreement between the parties to the contrary, and until the child turns four :
(a) changeovers prior to M Centre offering the parties a place in its changeover program; and
(b) changeovers which occur when M Centre is not open;
be undertaken by an independent person employed by Aiding and Caring Sitters Agency or other like professional agency and the person undertaking the changeovers deliver the child to the mother’s home at the commencement of a period of time with her and collect the child from the mother’s home at the conclusion of a period of time with her, and the father be responsible for all costs associated with this order.
12.
That upon the child turning four, and subject to any agreement to the contrary between the parties, changeovers occur at an agreed neutral venue and, failing agreement, at the McDonald’s Restaurant closest to the mother’s home.
13.
That the parties use a communication book to inform each other of matters referrable to the child’s welfare and the communication book accompany the child at changeovers.
14.
That the father advise the mother in writing of each crèche, childcare centre or kindergarten attended by the child, PROVIDED THAT this order does not require the father to advise the mother of the name of a person who babysits the child, whether in his home or the babysitter’s home.
15.
That the mother be and is hereby restrained by herself, her servants and agents from attending at a crèche, childcare centre or kindergarten attended by the child, save :
(a) on a day when the child is in her care pursuant to these orders; or
(b) with the written consent of the father.
16.
That the father advise the mother in writing of the school at which the child is to be enrolled no later than fourteen days prior to her first day of school and thereafter keep the mother advised in writing of any change in the school at which the child is enrolled.
17.
That each of the parties forthwith advise the other of any significant illness or accident suffered by the child when in his or her care.
18.
That nothing in paragraphs (15), (16) or (17)hereof derogates from the father’s obligation to consult the mother, pursuant to paragraph (3) hereof.
19.
That from the date on which the child commences school, the mother be at liberty to attend events, activities and functions routinely attended by parents PROVIDED THAT the mother may not remove the child from the school, save to spend time with her pursuant to these orders or with the written agreement of the father.
20.
That the father authorise the principal of each kindergarten and school attended by the child to provide to the mother, at her request and her expense (if any), by ordinary mail, copies of :
(a) each order form for kindergarten or school photos of the child; and
(b) each kindergarten or school report for the child.
21.
That the mother be and is hereby restrained from taking or allowing any other person to take the child for any medical examination, or therapeutic intervention by any medical practitioner, psychologist, social worker, counsellor or like professional which relates in any way to an allegation that the child has been sexually abused by the father or by any other person when in his care, save pursuant to a request from a protective worker employed by the Department of Human Services or a member of a police force.
22.
That the father serve a sealed copy of these orders on the principal of each crèche, childcare centre, kindergarten or school attended by the child from time to time as soon as practicable after her enrolment.
23.
That the independent children’s lawyer serve a sealed copy of these orders and the reasons for judgment on the Department of Human Services, together with a letter advising of the provisions of paragraph (21) of these orders.
24.
That the reasons for judgment herein may be made available to :
(a) the principal of a crèche, childcare centre, kindergarten or school attended by the child from time to time and, in the absolute discretion of that principal, any teacher or staff member working with the child;
(b) a protective worker or other person employed by the Department of Human Services or to whom the Department of Human Services has referred a party or the child, who is investigating any subsequent allegation referrable to alleged sexual abuse of the child or other physical or emotional abuse of the child ;
(c) a member of Victoria Police or Australian Federal Police involved in investigating any allegation which relates to a party or the child;
(d) Constable O and any other member of Victoria Police or the Office of Public Prosecutions involved in investigation of an incident on 8 June, 2008 outside the mother’s home and involved in the prosecution of any charge laid by Victoria Police referrable to the incident between the parties that day;
(e) Dr. E;
(f) Mr. V; and
(g) any medical practitioner, psychologist, therapist or counsellor who may be treating the child at the request of the father or the Department of Human Services.
25.
That implementation of these orders be supervised by a family consultant pursuant to s.65L of the Family Law Act 1975 for a period of twelve months and such supervision be reportable if :
(a) an application is filed in this or another court having jurisdiction under the Family Law Act 1975 by a person seeking orders referrable to the child; and
(b) the judicial officer before whom such application is listed, so orders.
26.
That each of the parties keep the other informed of a telephone number at which he or she can be contacted in an emergency, and an email address to which written correspondence can be sent by the other.
27.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
28.
That each of the parties by themselves their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein with the child or in the presence or hearing of the child.
29.
That the father pay the costs of Constable O, fixed at $529.60, within one month hereof.
30.
That the independent children’s lawyer’s application for costs be dismissed.
31.
That all extant applications be otherwise dismissed save that there be liberty to apply within fourteen days if a party presses a costs application.
32.
That these proceedings be removed from the List of matters awaiting finalisation.
33.
That pursuant to s.62B and s.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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
34.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.
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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