Hebbard and Jandrey

[2020] FCCA 2507

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEBBARD & JANDREY [2020] FCCA 2507

Catchwords:
FAMILY LAW – Parenting – where the child lives with the mother and spends limited time with the father pursuant to interim orders – consent orders for lengthy adjournment to allow the child to establish or re-establish a relationship with the father.  

Legislation:

Family Law Act 1975 (Cth), s.11F

Applicant: MS HEBBARD

Respondent: MR JANDREY

File Number: ADC 1321 of 2019

Judgment of: Judge Young

Hearing date: 19 August 2020

Date of Last Submission: 19 August 2020

Delivered at: Darwin

Delivered on: 19 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Duncan Basheer Hannon

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Michael W Speck & Co

Counsel for the Independent Children’s Lawyer: Ms Tydeman

Solicitors Independent Children’s Lawyer: Legal Services Commission

ORDERS

UPON NOTING:

A.That the parties seek a long adjournment to allow an opportunity for the child to develop a relationship with his father.

BY CONSENT UNTIL FURTHER ORDER THAT:

1. The child X born in 2012 (“the chid”) live with the mother.

2. The mother have sole parental responsibility for the child X born in 2012 and in the event the mother makes any continuing health, major or long term decision relation to the child including but not limited to proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child, the mother shall;

   (a)ensure that notification is given to the father in writing, not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency; and

   (b)take into consideration any views expressed by the father in respect of such proposed decisions; and

   (c)notify the father in writing of the decision made by the mother.3

3. The child communicates with the father each Wednesday and Sunday between 6pm and 6.30pm (South Australian time) by telephone or Facetime/Skype/WhatsApp, or other agreed face to face call/program, with the father to initiate the communication.

4. The child is at liberty to communicate with the father at all reasonable times by telephone or Facetime/Skype/WhatsApp, or other agreed face to face call/program, with the mother to initiate the communication in the event the child expresses a wish to do so.

5. The father is at liberty to send age appropriate cards and gifts to the child on special occasions and not more than once per month, with the mother to ensure the cards and gifts are provided to the child within 24 hours of receipt and with the mother to facilitate the child sending a message to the father acknowledging receipt of the card/gift.

6. For the purposes of paragraph 3, 4, and 5 herein:

   (a)The father shall provide the Mother with a mobile telephone for the purposes of contacting the child and NOTING the mother does not have Wi-Fi at her residence and will be reliant upon continuing pre-paid data to the child’s telephone at the expense of the father;

   (b)All cards, gifts and the mobile phone are posted to the child via a PO Box the mother will obtain and notify the father of the details of same within 21 days;

   (c)The mother shall ensure the child is available and in a quiet location to take the call from the father;

   (d)The father only shall speak to X and not place him on speakerphone and the mother shall ensure X is provided with privacy for the communication and not on speakerphone unless the communication is by way of Facetime/Skype/What’s App, or other agreed face to face call/program.

7. The child spend time with the father only, as follows:

   (a)In 2020/2021 December/January school holiday period as follows:

   (i)On Saturday 2 January 2021 between 10am and 1pm in the presence of the maternal grandmother Ms B;

   (ii)On Sunday 3 January 2021 between 10am and 1pm in the presence of the maternal grandmother Ms B.

   (b)In 2021 Easter / April for two consecutive days in South Australia between 10am and 2pm in the presence of the maternal grandmother Ms B.

8. The father’s time with the child at paragraph 7(a) shall occur at such of Town C or Town D as may be agreed between the maternal grandmother and the father and advised to the mother, and the father is restrained, and an injunction is hereby granted restraining the father from removing the child outside of that area without the express written consent of the mother. 4

9. The father’s time with the child at paragraph 7(b) shall occur within 70km radius of Town C as may be agreed between the father and the maternal grandmother and advised to the mother and the father is restrained, and an injunction is hereby granted restraining the father from removing the child outside of that area without the express written consent of the mother.

10. In the event the child expresses a wish to returned to the mother during any period of time with the father as set out in paragraph 7 herein, the father shall immediately facilitate the child telephoning the mother and in the event the child maintains a view to be returned to the mother, the father will immediately facilitate the child being returned to the mother via the maternal grandmother.

11. All handovers shall occur between the father and the maternal grandmother (or such other nominee known to the child, and as nominated by the mother and notified to the father via text message) at the E Service Station, Town C, SA (Town D Road).

12. The father is at liberty to communicate directly by telephone or other electronic means, with the child’s school and obtain copies of the child’s newsletters, school reports and school photograph orders forms, at the father’s sole expense in all things and the father is at liberty to attend parent/teacher nights either in person (provided the mother is not present), or by facetime / Skype / What’s App, or other program utilised by the school) or any other school functions or extracurricular activities to which parents are invited to attend PROVIDED THAT the father does not approach or attempt to communicate with the mother at any time.

13. The father is at liberty to provide to the school of the child a copy of this order and all details for him as a contact person for the purposes of orders 12 and 14 herein.

14. The father is at liberty to attend (whether in person, by telephone or otherwise) any case conference in respect of the child which may be convened by the child’s school.

15. The mother shall keep the father informed, in writing (by email) of:

    (a)Details of the child’s current school and any changes to the child’s school within 7 days of such change occurring;

    (b)Details of the current suburb in which the mother and child reside and any changes thereto within 7 days of such change occurring;

    (c)any medically diagnosed condition suffered by the child and any medication or treatment recommended to the mother by any medical professional treating the child;

    (d)details of the child’s treating medical professionals and allied health workers treating the child from time to time;

16. In the event the child suffers any serious medical illness or is hospitalised, the parent who has care of the child shall as soon as practicable, notify the other parent of such serious medical illness or hospitalisation. 5

17. The parties and child do attend for child inclusive conference pursuant to s.11f not before the end of April 2021 with the father being at liberty to attend by telephone and with a memorandum to court to issue therefrom.

18. Pursuant to s.11F of the Family Law Act 1975, the parties and the child X born in 2012 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Adelaide on 6 April 2021 at 9.30am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTING that the family consultant is to have discretion as to how the parties attend.

19. The father be at liberty to attend the conference referred to above herein by telephone.

20. Following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

21. The matter be adjourned to 4 June 2021 at 9.30am for further directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1321 of 2019

MS HEBBARD

Applicant

And

MR JANDREY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a matter concerning X who is seven years old.  The counsel for the mother submitted that the material suggested that at least the child suffers from autism spectrum disorder and she referred to the child’s very difficult and dysregulated behaviours.  I’m not sure that she put it any higher than that.  I had asked whether there was any evidence of an autism diagnosis and the common ground seems to be that there is none at this stage, although Ms Tydeman said that as a result of her inquiries it is agreed by the child’s school, at least, that the child suffers from very significant anxiety and behavioural issues, so it may be that the child is autistic. 

3. I asked about that because the present orders, and they are interim orders, provide essentially for the child to have quite limited time with the father and indeed there is an interim order that the mother have sole parental responsibility for the child and that the father spend a couple of days in January 2021 with the child.  The father is presently resident in Western Australia and appears to have had little to do with the child over his life, but the father is evidently committed to re-establishing or establishing a relationship with X.  For reasons, some of which I have touched on, that would appear to be a task that will require a great deal of commitment and probably time. 

4. I think these orders recognise that and that being the case I’m satisfied they are appropriate. The parties simply wish to have the matter adjourned to not before June 2021, I guess to see how arrangements go and given the background of the case I can see that that is a reasonable approach to take and they are seeking an section 11F memorandum child inclusive conference.

5. So I think while what is being proposed, particularly the long adjournment for about a year, is ordinarily not an order that I would willingly make.  This appears to be one of the exceptions to that and I am satisfied that the orders and the long adjournment are in the child’s best interests. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 7 September 2020