FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISAAC & ISAAC | [2013] FCCA 136 |
| Catchwords: FAMILY LAW – Application for final parenting orders – competing applications for live with orders – allegations of and existence of family violence – concerns as to mother’s mental health and capacity to promote children’s relationship with father – evidence of independent experts – concerns as to children’s best interests if they remain in current environment – effect of change – position of Independent Children’s Lawyer – whether orders in children’s best interests. |
| Legislation: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2001 (Cth) |
| Cases cited: Saunders & Saunders (1976) FLC 90-078 Hall & Hall (1979) FLC 90-713 Mulvany & Lane [2009] FamCA 76 Collu & Rinaldo [2010] FamCAFC 53 Goode & Goode [2006] FamCA 1346 Lennon & Lennon [2011] FamCA 571 Simpson & Hamlin (1984) FLC 91-576 |
| Applicant: | MR ISAAC |
| Respondent: | MS ISAAC |
| File Number: | DGC 400 of 2012 |
| Judgment of: | Judge O’Sullivan |
| Hearing dates: | 2-3, 5, 8-11 April 2013 |
| Date of Last Submission: | 29 April 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 24 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms P. Byrnes |
| Solicitors for the Applicant: | Macpherson & Kelley Lawyers |
| Counsel for the Respondent: | Mr A. Lovering |
| Solicitors for the Respondent: | Macgregor Solicitors |
| Counsel for the Independent Children’s Lawyer | Ms M. Stavrakakis |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting Orders be discharged.
The father have sole parental responsibility for the children [X], born [in] 2001 and [Y], born [in] 2005 (“the children”).
The children live with the father.
Subject to paragraphs 5, 6, 7, 8 and 9 herein the children spend time and communicate with the mother as agreed in writing between the parents.
The mother forthwith attend upon a psychiatrist for the purposes of assessment and treatment and the mother comply with all reasonable directions and recommendations of the said psychiatrist.
The mother provide the said psychiatrist referred to in paragraph
5 herein with copies of the following reports:(a)Psychiatric report prepared by Dr E dated 26 July 2012 relating to the mother and the father.
(b)Family Report prepared by Dr N dated 5 September 2012.
(c)Supplementary Family Report…
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- ISAAC & ISAAC [2013] FCCA 136
- Case
- [2013] FCCA 136
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the proposed parenting orders were in the best interests of the children, particularly in light of the alleged family violence, the mother's mental health, and the need to promote the children's relationship with both parents. The court was required to assess the evidence, including expert reports, to determine the most appropriate living arrangements and parental responsibilities for the children.
The court reasoned that the existing circumstances and the evidence presented necessitated a significant shift in the parenting arrangements to safeguard the children's welfare. Applying the paramount consideration of the children's best interests, the court found it necessary to discharge all previous parenting orders. The father was granted sole parental responsibility, and the children were ordered to live with him. The mother was directed to undergo psychiatric assessment and treatment, with strict conditions regarding her compliance and reporting to the father and the psychiatrist. The court also imposed various injunctions and restraints to protect the children, including restrictions on international travel and communication, and prohibitions against denigrating the other parent in the children's presence.
Orders
Orders of the court
1.
All previous parenting Orders be discharged.
2.
The father have sole parental responsibility for the children [X], born [in] 2001 and [Y], born [in] 2005 (“the children”).
3.
The children live with the father.
4.
Subject to paragraphs 5, 6, 7, 8 and 9 herein the children spend time and communicate with the mother as agreed in writing between the parents.
5.
The mother forthwith attend upon a psychiatrist for the purposes of assessment and treatment and the mother comply with all reasonable directions and recommendations of the said psychiatrist.
6.
The mother provide the said psychiatrist referred to in paragraph
5 herein with copies of the following reports:
(a) Psychiatric report prepared by Dr E dated 26 July 2012 relating to the mother and the father.
(b) Family Report prepared by Dr N dated 5 September 2012.
(c) Supplementary Family Report prepared by Dr N dated 12 March 2013.
(d) A copy of the Reasons for Judgment together with a copy of these Orders.
7.
The mother provide the father with a report from the said psychiatrist confirming the psychiatrist’s diagnosis, prognosis, treatment and the mother’s compliance with prescribed medication.
8.
The mother provide the father with a report from the said psychiatrist to confirm the mother’s mental health does not adversely affect her capacity to parent the children.
9.
The mother authorise the said psychiatrist to communicate directly with the father regarding, inter alia, the mother’s diagnosis, prognosis and treatment.
10.
As soon as practicable but in any event within 48 hours the Independent Children’s Lawyer and Dr N meet with the children for the purpose of informing the children about these Orders.
11.
The Independent Children’s Lawyer provide Dr N with a copy of the Reasons for Judgment and Orders made herein.
12.
The Mother be and is hereby restrained from taking the children, or either of them, to any counsellors, therapists, psychologists without the father’s written consent.
13.
The mother and father shall not use any form of physical punishment on the children, or either of them.
14.
That [X], born [in] 2001 and [Y], born [in] 2005 are restrained from leaving the Commonwealth of Australia.
15.
That Mr Isaac (“the father”) and Ms Isaac (“the mother”) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said children [X], born [in] 2001 and [Y], born [in] 2005 from the Commonwealth of Australia.
16.
IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court orders its removal.
17.
This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation
12 of the Family Law Regulations)
18.
Within 7 days of the date of these Orders the mother provide the father with the children’s passports and the passports be retained by the father.
19.
The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
20.
The mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
21.
That subject to these orders the mother otherwise be restrained from contacting (including by text message, Facebook, Skype or phone call) the children when they are in the father's care unless she obtains his prior written consent.
22.
The father be listed forthwith as the emergency contact person at the children's school and he provide a copy of these orders to the school and any other school the children or either of them attend.
23.
The father be permitted to provide a copy of these orders to any medical, speech therapist or other treating professional of the children.
24.
The mother be permitted to receive school reports for the children directly from the children’s schools at her expense.
25.
That both parties be and is hereby restrained from discussing these proceedings or showing the children documents in these proceedings or permitting any other person to do so.
26.
That both parties follow the recommendations of any treating paediatrician or other professional in relation to [Y]'s diagnosed learning difficulties.
27.
That each party provide the other with at least 28 days advance written notice of any intended change to their residential address or telephone number.
28.
The father keep the mother informed of:
(a) any serious illness, injury or other significant condition of either of the children;
(b) any medical emergencies involving the children as soon as practicable;
(c) any treating professional in relation to [Y]'s learning or behavioural issues.
29.
The Independent Children’s Lawyer provide a copy of these Orders to the [omitted] Magistrates’ Court at [omitted] to be placed on the intervention order proceedings file, case number [omitted].
30.
Subject to the above the Order for the appointment of the Independent Children’s Lawyer be discharged.
31.
Pursuant to 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 are set out in Annexure A and these particulars are included in these orders.
32.
All extant applications be otherwise dismissed and removed from the Pending Cases List.
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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