Insley & Maidment

Case [2021] FCCA 1399


FEDERAL CIRCUIT COURT OF AUSTRALIA

Insley & Maidment [2021] FCCA 1399

File number(s): DGC 2380 of 2017
Judgment of: JUDGE BENDER
Date of judgment: 22 June 2021
Catchwords:

FAMILY LAW – Parenting – the parties’ applications in relation to parenting arrangements for their 5 year old daughter – where the Mother alleges the Father poses a risk to the child because of his lack of insight into the child’s medical issues – both parties seek an order for sole parental responsibility in relation to medical decisions –the Mother makes numerous allegations that the Father provides substandard care for the child – both parties’ proposals are for the child to spend substantial and significant time with the Father – the Mother proposes an 11/3 arrangement – the Father proposes a 5/9 arrangement.

HELD – Father found not to pose a risk to the child – orders made for the parties to have equal shared parental responsibility for the child including in relation to medical decisions – orders made for the child to live with the Mother and spend time with the Father gradually increasing over 2 years such that by July 2023 the chid spends 5 nights a fortnight and half school holidays with the Father.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:

AMS v AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238

Number of paragraphs: 303
Date of last submission/s: 30 April 2021
Date of hearing: 28-30 April 2021
Place: Melbourne
Counsel for the Applicant: Ms Smallwood S.C.
Solicitor for the Applicant: Fair Family Law
Counsel for the Respondent: Mr Wilson
Solicitor for the Respondent: KHQ Lawyers

ORDERS

DGC 2380 of 2017
BETWEEN:

MR INSLEY

Applicant

AND:

MS MAIDMENT

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged save for injunctive orders numbered 3 and 4 of the orders made on 14 November 2019 which remain in full force and effect.

2.The parties have equal shared parental responsibility for the child X born in 2016 (“X”).

3.X live with the Mother.

4.X spend time and communicate with the Father as follows:

During ELC/school terms

(a)commencing from the date of these orders in a two week cycle:

(i)in the first week from after ELC/school Friday (or 3.30pm on a non-ELC/school day) to 4.30pm Sunday and each alternate week thereafter; and

(ii)in the second week from after ELC/school Thursday (or 3.30pm on a non-ELC/school day) to 6.30pm and each alternate week thereafter and the Father shall ensure X has been given her dinner during X’s time with him.

(b)commencing 1 December 2021 in a two week cycle:

(i)in the first week from after ELC/school Friday(or 3.30pm on a non-ELC/school day) to 4.30pm Sunday and each alternate week thereafter; and

(ii)in the second week from after ELC/school Thursday (or 3.30pm on a non-ELC/school day) to before ELC/school Friday (or 9.00am on a non-ELC/school day) and each alternate week thereafter.

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Details
AGLC
Insley & Maidment [2021] FCCA 1399
Case
[2021] FCCA 1399
Decision Date

CaseChat Overview and Summary

In this matter before the Federal Circuit and Family Court of Australia, Mr Insley (the Applicant Father) and Ms Maidment (the Respondent Mother) sought final parenting orders concerning their child, X, born in 2016. The dispute centred on the allocation of parental responsibility and the time X would spend with each parent.

The court was required to determine the extent of shared parental responsibility for X, including decisions relating to her health. Furthermore, the court needed to establish a detailed schedule for X's time with each parent, considering school terms, holidays, and special occasions, and to address the practical arrangements for the transfer of X between parents.

Justice Bender ordered the discharge of all previous parenting orders, save for existing injunctive orders. The court made orders for equal shared parental responsibility for X, with X to live with the Mother. A comprehensive schedule was set out for X's time with the Father, commencing with specific arrangements for ELC/school terms and holidays, which were to progressively increase X's time with the Father over several years. The orders also detailed arrangements for special occasions, communication between parents and X, medical decision-making, and the exchange of information regarding X's education and health. Specific provisions were made for communication between the parties, including the use of the Our Family Wizard app, and injunctions were imposed to prevent denigration of either parent in the presence of X.

Orders

Orders of the court

DGC 2380 of 2017

BETWEEN:

MR INSLEY

Applicant

AND:

MS MAIDMENT

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged save for injunctive orders numbered 3 and 4 of the orders made on 14 November 2019 which remain in full force and effect.

2. The parties have equal shared parental responsibility for the child X born in 2016 (“X”).

3. X live with the Mother.

4. X spend time and communicate with the Father as follows:

During ELC/school terms

(a) commencing from the date of these orders in a two week cycle:

(i) in the first week from after ELC/school Friday (or 3.30pm on a non-ELC/school day) to 4.30pm Sunday and each alternate week thereafter; and

(ii) in the second week from after ELC/school Thursday (or 3.30pm on a non-ELC/school day) to 6.30pm and each alternate week thereafter and the Father shall ensure X has been given her dinner during X’s time with him.

(b) commencing 1 December 2021 in a two week cycle:

(i) in the first week from after ELC/school Friday(or 3.30pm on a non-ELC/school day) to 4.30pm Sunday and each alternate week thereafter; and

(ii) in the second week from after ELC/school Thursday (or 3.30pm on a non-ELC/school day) to before ELC/school Friday (or 9.00am on a non-ELC/school day) and each alternate week thereafter.

(c) from the commencement of third term in 2022 in a two week cycle:

(i) in the first week from after school Friday (or 3.30pm on a non-school day) to before school Monday (or 4.30pm on a non-school day) and each alternate week thereafter; and

(ii) in the second week from after school Thursday (or 3.30pm on a non-school day) to before school Friday (or 9.00am on a non-school day) and each alternate week thereafter.

(d) from the commencement of third term in 2023 in a two week cycle:

(i) in the first week from after school Thursday (or 3.30pm on a non-school day) to before school Monday (or 4.30pm on a non-school day) and each alternate week thereafter; and

(ii) in the second week from after school Thursday (or 3.30pm on a non-school day) to before school Friday (or 9.00am on a non-school day) and each alternate week thereafter.

During the school holidays

(e) in the first term holidays in 2022 X’s time with the Father pursuant to order 4(b)(i) herein be extended to 4.30pm Monday;

(f) in the third term holidays in 2022 X’s time with the Father pursuant to order 4(b)(i) herein be extended to 4.30pm Monday;

(g) in the 2022/2023 long summer vacation X’s time with the Father pursuant to order 4(b)(i) herein be extended on 2 occasions to 4.30pm Tuesday on such weekend as agreed between the parties in writing no less than 28 days prior to the commencement of the holidays and failing agreement on the weekends nominated by the Father in writing no less than 14 days prior to the commencement of the holidays;

(h) in the first term holidays 2023 X’s time with the Father pursuant to order 4(c)(i) herein be extended to 4.30pm Wednesday;

(i) in the third term holidays 2023 X spend time with the Father for a block period of 6 nights as agreed between the parties in writing from 9.00am on the morning of the first day to 4.30pm on the afternoon of the seventh day and failing agreement X’s time with the Father pursuant to order 4(d)(i) herein be extended to 4.30pm Thursday;

(j) in the 2023/2024 and the 2024/2025 long summer vacation for two separate one week periods as agreed between the parties in writing no less than 28 days prior to the commencement of the holidays and failing agreement as nominated by the Father in writing no less than 14 days prior to the commencement of the holidays;

(k) commencing in 2024 for half of the first and third term holidays as agreed between the parties in writing and failing agreement for the first half from after school on the last Friday of term to 4.30pm on the middle Saturday of the holidays;

(l) commencing in the 2025/2026 long summer vacation and each long summer vacation thereafter for a 2 week block as agreed between the parties in writing no less than 28 days prior to the commencement of the holidays and failing agreement as nominated in writing by the Father no less than 14 days prior to the commencement of the holidays;

Special occasions

(m) from 4.00pm the Saturday prior to Father’s Day to 4.30pm Father’s Day;

(n) for not less than 2 hours on X’s birthday and the Father’s birthday if the birthdays fall on a school day as agreed between the parties and failing agreement from the conclusion of school to 6.00pm and if the birthday falls on a non-school day for a period of not less than 4 hours as agreed between the parties and failing agreement from 12.00noon to 4.00pm;

(o) from 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2021 and each alternate year thereafter and from 3.00pm on Christmas Eve to 3.00pm on Christmas Day in 2022 and each alternate year thereafter; and

(p) as otherwise agreed between the parties in writing.

5. X’s time with the Father pursuant to order 4 herein shall be suspended and X spend time with the Mother as follows:

(a) from 4.00pm the Saturday prior to Mother’s Day to 4.30pm Mother’s Day;

(b) for not less than 2 hours on X’s birthday and the Mother’s birthday if the birthday falls on a school day as agreed between the parties and failing agreement from the conclusion of school to 6.00pm and if the birthday falls on a non-school day for a period of not less than 4 hours as agreed between the parties and failing agreement from 12.00noon to 4.00pm;

(c) from 3.00pm on Christmas Eve to 3.00pm on Christmas Day in 2021 and each alternate year thereafter and from 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2022 and each alternate year thereafter;

(d) upon the Mother giving the Father not less than 28 days’ written notice, for the Mother’s family’s annual camping trip in or around February each year for no longer than 4 consecutive nights;

(e) commencing in 2022, for the term two school holidays; and

(f) as otherwise agreed between the parties in writing.

6. Commencing in third term in 2023, X’s school term time with the Father pursuant to order 4 herein shall be suspended during the school holidays and resume as if the holidays had not intervened

7. For the purpose of these orders, all changeovers that do not take place at X’s ELC/school shall take place outside Suburb B Police Station for the remainder of 2021. In 2022 and thereafter if not at X’s school the Father shall collect X from the Mother at Coles Supermarket Suburb B at the commencement of his time and the Mother shall collect X from the Father at Coles Supermarket Suburb C at the conclusion of his time unless otherwise agreed in writing. Both parties may have an agent known to X attend changeover in their stead and shall give the other party notice in writing of who will be attending changeover in the event they are not doing so.

8. Each party will facilitate X telephoning or communicating with the other parent:

(a) on no less than one occasion when X is in their care for up to 4 nights and on no less than 2 occasions in each week when X is in their care for more than 4 nights; and

(b) at any reasonable time as X may request.

9. Each of the parties will follow all reasonable directions and recommendations of X’s treating medical practitioners and save in the event of an emergency only take X to her agreed treaters and each party shall advise the other of any appointments made for X to attend upon her agreed treaters and each party be at liberty to communicate with X’s treaters.

10. For the purposes of order 8 herein X’s current agreed medical practitioners are:

(a) paediatric immunologist Dr D of the F Hospital;

(b) paediatric haematologist Dr E;

(c) paediatrician Dr G;

(d) general practitioners Dr H and Dr J;

(e) Dr K (eczema specialist);

(f) Dr L (dentist) of Region M Dental Clinic; and

(g) such other medical practitioners as agreed between the parties in writing.

11. Each of the parties are permitted to attend all of X’s ELC/school activities, functions and events and all extra-curricular activities normally attended by parents.

12. Each of the parties give all necessary consents and authorities to the other party to obtain information concerning X’s education, health care and extra-curricular activities.

13. The parties communicate via the Our Family Wizard app save for medical or other emergencies affecting X which shall be communicated immediately by telephone call or SMS text message.

14. The Mother and Father shall each immediately inform the other of any serious illness or injury sustained by X when in their care and further provide particulars of any treatment received by her together with the name, address and contact number of the treatment provider and the location at which X is a patient and authorise the treatment provider to speak to the other parent.

15. Each party shall notify the other, not less than 24 hours prior to any change to their residential address and/or mobile telephone number and/or email address.

16. Each party shall notify the other of the address or location and the telephone number (if any) of the place(s) where X will be staying during any weekend trip or holiday spent away from their residence no less than 14 days prior to the commencement of any weekend trip or holiday including any proposed interstate holiday.

17. The parties be permitted to travel overseas with X at times agreed between the parties subject to the travelling parent:

(a) ensuring that appropriate travel insurance is in place in respect of X; and

(b) providing to the other parent:

(i) not less than 42 days prior to departure written notice to the other parent of their intention to travel with X;

(ii) not less than 30 days prior to departure:

A. a copy of the proposed itinerary/ies showing dates of departure and return, including a copy of the ticket/s purchased, carrier details, flight numbers and like information;

B. accommodation details; and

C. contact details as to where the other parent may contact X while they are away.

18. X’s passport be held by the Mother.

19. The Mother make X’s passport available to the Father for the purpose of overseas travel no later than 7 days prior to the date for departure and the Father return X’s passport to the Mother within 7 days of their return to Australia.

20. In the event X is invited to a social function (including a friend’s birthday party) a copy of the invitation shall be provided to the parent who has the care of X pursuant to these orders when the function is being held, to respond to that invitation.

21. The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and from permitting any other person from doing so.

22. Each of the parties are authorised to provide a copy of these orders and the orders made on 14 November 2019 to the principal of X’s school and to X’s agreed treaters and any medical practitioner X attends in the case of an emergency.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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

Because of COVID-19 the final hearing set down for 1 April 2020 was unable to proceed. The parties were ordered to instead attend mediation in an endeavour to resolve the matter but this was unsuccessful. The matter was finally heard in April 2021. THE EVIDENCEThe Father The Father relies on his trial affidavit sworn on 26 February 2020 and updating affidavit sworn on 24 March 2021. The Father sought leave to rely on the affidavit of his partner Ms R affirmed on 23 April 2021. The Mother consented to leave being granted for the Father to rely on Ms R’s affidavit. The Father also gave vive voce evidence at the final hearing. It is the Father’s evidence that he and X have a close and loving relationship. He acknowledges that X is primarily attached to her Mother and believes that he is also a source of comfort and security to her. The Father is seeking orders for a graduated increase in the time that X spends with him so that they can have a genuine father-daughter relationship and she knows and is part of his larger close-knit family group. In his Outline of Case document the Father sought orders that the parties have equal shared parental responsibility for X including for decisions relation to X’s health. At the conclusion of the evidence, Counsel for the Father advised the Court that the Father is now seeking order for equal shared parental responsibility save that he have sole responsibility for medical decisions for X. It is the Father’s evidence that the orders proposed by him will enable him to be actively involved in all aspects of X’s life including school, extra-curricular activities and all her other day to day life experiences. The Father adamantly denies that his parenting of X places her at any risk of harm. He denies the myriad of allegations made against him by the Mother in relation to his care of X and his alleged violence to the Mother both during the relationship and subsequently. The Father denies the Mother’s allegation that he regularly returns X to her care in an exhausted state. In cross-examination the Father explained X’s weekend routine with him. His evidence is that he collects X at 10.00am and they go to their local café where she has a babyccino whilst he has a coffee. They then return to his home where they do things together until she has lunch somewhere between 12.00pm and 1.00pm. She usually has a lunchbox with her that her Mother makes and sends with her. The Father describes X as a grazer and that he ensures that she has healthy snacks that she can access at any time of the day. The Father’s evidence is that X does not want to have a nap in the afternoon, particularly now as she is older. If she is tired then she has quiet time during which craft work is done and she takes a rest. Dinner is between 5.30pm and 6.30pm after which it is bath time, story time and then she is in bed between 7.00pm and 7.30pm. On Sunday X wakes early but is not allowed into the Father and Ms R’s room until between 6.30am and 7.30am. They have porridge or toast for breakfast and, subject to the weather, they might go to the pool for a swim. They return home and do things together such as play in the yard or they might go for a bike ride. In the morning they also walk the Father’s dog Z.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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