FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Korbin & Korbin [2022] FedCFamC2F 610
File number(s): DUC 113 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – Interim Parenting – relocation – assessment of risk – best interest of child – consent position as to parental responsibility and live with – mother to return child to City B – father to spend significant and substantial time with child. Legislation: Family Law Act 1975 (Cth) s 65DAA Cases cited: Beaton & Beaton [2020] FamCAFC 297
Goode v Goode [2006] FamCA 1346
Jones v Dunkel [1956] HCA 8Keats & Keats [2016] FamCAFC 156
Division: Division 2 Family Law Number of paragraphs: 56 Date of hearing: 11 May 2022 Place: Dubbo Counsel for the Applicant: Ms Seric Solicitors for the Applicant: King Cain Solicitors Counsel for the Respondent: Ms Otrebski Solicitors for the Respondent: Emily Peoples Solicitor ORDERS
DUC 113 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KORBIN
Applicant
AND: MS KORBIN
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
13 MAY 2022
BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for the child, X born in 2017 (“the child”).
2.The child shall live with the mother.
3.The child shall spend time with the father by agreement, but failing agreement, as follows:
(a)In each alternate weekend, from 3:30pm Friday until 4:00pm Sunday; and
(b)By telephone or FaceTime, each Monday, Wednesday and, if the child is not otherwise in the father’s care, Friday and Sunday between 5:00pm to 5:30pm, by phone or other electronic platform such as Skype or Facetime.
Changeover
4.In the event that the child lives in City B, then changeover shall occur at school/daycare or at the Information Centre at City B in the event that changeover occurs on a day that the child does not attend school/daycare.
5.In the event that the child lives in Town C, then changeover shall occur at the Location D rest area at the commencement of time and at the Location E rest area at its conclusion.
Treatment and Injunctions
6.Within 7 days of the date of these orders, the father shall contact his GP for the purposes of the following:
(a)Arranging a consultation at the earliest available opportunity to discuss his alcohol consumption and mental health history; and
(b)Shall request that his GP prepare a mental health care plan and for a referral to appropriate supports and treaters (“the treaters”).
7.The father shall attend upon, engage with and abide by all reasonable directions of the treaters and after a period of 3 months request a report from each treater addressing the following (“the treater’s report”):
(a)His reported mental health history;
(b)His reported alcohol use;
(c)The number of sessions that the father has been booked to attend and how many sessions the father did attend;
(d)The father’s engagement with the treater;
(e)Any diagnoses;
(f)Any medications that have been prescribed and…
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CaseChat Overview and Summary
The Court needed to decide on several legal issues, including the allocation of parental responsibility, the primary residence of the child, and the specific arrangements for the child to spend time with each parent. Additionally, the Court had to consider the implications of the mother's proposed relocation of the child's residence and the father's concerns about the child's welfare in that new location. The Court also needed to address the father's mental health and alcohol consumption history, which were pertinent to his capacity to care for the child.
The Court found that the parents should have equal shared parental responsibility for the child. The child would live with the mother, but the father would have substantial and significant time with the child, with detailed arrangements for changeovers and communication between parents. The Court also noted the mother's ongoing engagement with her GP for mental health management. To ensure the father's suitability to spend time with the child, the Court ordered that he must consult with his GP, engage with mental health treaters, and submit to a Carbohydrate Deficient Transferin test. The Court further directed that the child's residence should return to the City B Local Government Area and that the father must assist with relocation costs. The Court also set out detailed time-sharing arrangements for the child to spend with each parent, including during school holidays and special occasions, and imposed various obligations on both parents regarding communication, care, and denigration.
By consent and pending further order, the Court ordered that the parents have equal shared parental responsibility for the child, the child shall live with the mother, and the child shall spend time with the father under specific conditions. The Court also directed the father to seek medical advice regarding his alcohol consumption and mental health history, engage with mental health treaters, and submit to a CDT test. The mother was directed to return the child's residence to City B and to assist with relocation costs. Detailed time-sharing arrangements were set out, including during school holidays and special occasions, and various obligations were imposed on both parents regarding communication, care, and denigration.
Orders
Orders of the court
DUC 113 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR KORBIN
Applicant
AND:
MS KORBIN
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
13 MAY 2022
BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1. The parents have equal shared parental responsibility for the child, X born in 2017 (“the child”).
2. The child shall live with the mother.
3. The child shall spend time with the father by agreement, but failing agreement, as follows:
(a) In each alternate weekend, from 3:30pm Friday until 4:00pm Sunday; and
(b) By telephone or FaceTime, each Monday, Wednesday and, if the child is not otherwise in the father’s care, Friday and Sunday between 5:00pm to 5:30pm, by phone or other electronic platform such as Skype or Facetime.
Changeover
4. In the event that the child lives in City B, then changeover shall occur at school/daycare or at the Information Centre at City B in the event that changeover occurs on a day that the child does not attend school/daycare.
5. In the event that the child lives in Town C, then changeover shall occur at the Location D rest area at the commencement of time and at the Location E rest area at its conclusion.
Treatment and Injunctions
6. Within 7 days of the date of these orders, the father shall contact his GP for the purposes of the following:
(a) Arranging a consultation at the earliest available opportunity to discuss his alcohol consumption and mental health history; and
(b) Shall request that his GP prepare a mental health care plan and for a referral to appropriate supports and treaters (“the treaters”).
7. The father shall attend upon, engage with and abide by all reasonable directions of the treaters and after a period of 3 months request a report from each treater addressing the following (“the treater’s report”):
(a) His reported mental health history;
(b) His reported alcohol use;
(c) The number of sessions that the father has been booked to attend and how many sessions the father did attend;
(d) The father’s engagement with the treater;
(e) Any diagnoses;
(f) Any medications that have been prescribed and compliance with that medication;
(g) Any recommendations for the father’s future treatment.
8. The father shall provide a copy of the treater’s report to the mother’s legal representatives forthwith and within 48 hours of its receipt.
9. Both parents are restrained from consuming alcohol above the NSW legal driving limit while the child is in their sole care.
Holiday Time
10. Conditional upon the father’s compliance with orders 6, 7 and 8 herein, the child is to spend time with the father during the NSW school holiday periods as follows:
(a) Until the child commences school in 2023, with the father in each of the short school holiday periods, for 4 consecutive nights as agreed but failing agreement, from 9:00am Thursday until 4:00pm Monday commencing in the first week;
(b) For the purposes of the Christmas school holiday period commencing in 2022, for 4 nights by agreement but failing agreement:
(i) From 5:00pm Tuesday 3 January 2023 until 5:00pm 7 January;
(ii) From 5:00pm Sunday 15 January until 5:00pm Thursday 19 January 2023; and
(iii) From 3.30pm Monday 23 January until 4:00pm Wednesday 25 January 2023.
11. Commencing in the Term 1 school holiday period in 2023, that the child spend time with the father for half of the short school holiday periods:
(a) For the first half in even numbered years; and
(b) For the second half in odd numbered years.
12. Conditional upon the father’s compliance with orders 6, 7 and 8 herein, the time pursuant to paragraph 3 be suspended in the NSW school holiday periods.
13. The “first half” of a school holiday period means from 4:30pm on the last day of the school term until 4:00pm on the Sunday falling closest to the midpoint of the holiday period and the “second half” of a school holiday period means from 4:00pm on the Sunday falling closest to the midpoint of the school holiday period until 4:00pm on the final Saturday of the holiday period.
THE COURT NOTES THAT:
A. The mother continues to be engaged with her GP for the purposes of her mental health management. She is due for a check-up in 3 weeks and will attend upon a GP in Town C to continue that treatment.
PENDING FURTHER ORDER, THE COURT FURTHER ORDERS THAT:
Carbohydrate Deficient Transferin Testing
14. Within 7 days of the date of these orders, the father shall submit to a Carbohydrate Deficient Transferin (“CDT”) test and provide to the mother’s legal representatives within 72 hours of receipt, a copy of the result of that test, together with a report from an appropriately qualified person interpreting that test result.
Return of the child’s residence to City B Local Government Area
15. No later than 3pm on Friday 1 July 2022, the mother shall cause the child’s residence to be in the City B Local Government Area and the mother shall thereafter be restrained from relocating the child’s residence outside of the City B Local Government Area without the express written agreement of the father or further Order of the Court.
16. Within twenty-eight (28) days from the date of these orders, the parties shall do all things necessary and sign all documents necessary to cause the child to be re-enrolled in F Day-Care Centre in City B.
Spend time with orders
17. In clarification of the time provided for in order 3(a) herein and in addition to it, the child shall spend time with the father as follows:
(a) Commencing on Friday 13 May 2022 and each alternate week thereafter from 3:30pm on Friday until 4:00pm on Sunday, with such time to increase after the commencement of the fourth school term in October 2022, to commence from the conclusion of day-care/school or 3:30pm on Thursday until 4:00pm on Sunday; and
(b) Upon the mother relocating the child’s residence back to the City B Local Government Area but commencing no later than Wednesday 13 July 2022 and each alternate week thereafter, from the conclusion of day-care/school or 3:30pm on Wednesday until the commencement of day-care/school or 9:00am on Thursday, with such time to increase after the commencement of the fourth school term in October 2022, from the conclusion of day-care/school or 3:30pm on Wednesday until the commencement of day-care/school or 9:00am on Friday.
18. Conditional upon the father’s compliance with orders 6, 7 and 8 herein, the time pursuant to order 17 shall be suspended during the NSW school holiday periods and such time shall resume on the first weekend after the commencement of the new school term.
Special Occasions
19. Notwithstanding any other order herein, on special occasions the child shall spend time with her parents as agreed, but failing agreement as follows:
(a) The father on Father’s Day weekend from after day-care/school or 3:00pm on Friday until 5:00pm Sunday (in the event that the child is not otherwise spending time with the father on that weekend);
(b) The mother on Mother’s Day weekend from after day-care/school or 3:00pm on Friday until 5:00pm Sunday (in the event that the child is not otherwise spending time with the mother on that weekend);
(c) The mother from 5:00pm Christmas Eve until 12:00 noon on Christmas Day in even numbered years, and from 12:00 noon Christmas Day until 5:00pm Boxing Day in odd numbered years;
(d) The father from 12:00 noon Christmas Day until 5:00pm Boxing Day in even numbered years, and from 5:00pm Christmas Eve until 12:00 noon on Christmas Day in odd numbered years;
(e) With the father on the child’s Birthday from after day-care/school or 3:00pm until 5:30pm if it is a school day and from 9:00am until 12:00 noon if it is a non-school day and the child is not otherwise in the father’s care; and
(f) In the event that the child is spending time with the father pursuant to these orders on her birthday, then in such circumstances the child is to be with the mother from 9:00am until 12:00 noon if it is a non-school day, and from 3:00pm until 5:30pm if it is a school day.
20. Each parent and all family members shall be at liberty to attend any school, sporting or extracurricular event to which the child attends regardless of where the child is living or spending time that day.
21. Each parent shall have such authority as is necessary to obtain information as would normally be available to a parent from any professional, body or organisation that holds information about the child including but not limited to doctors, hospitals, schools, and sporting associations.
22. Each parent shall forthwith notify the other at the earliest opportunity if the child is required to attend upon a doctor or a hospital for any reason.
23. Each parent shall forthwith notify the other of any medical, therapist, school or any such other appointment concerning the child at the earliest opportunity but not less than 24 hours prior to that appointment.
24. Each parent shall forthwith notify the other of any major health issue concerning the child which comes to the attention of that parent whilst they are in his or her care.
25. Each parent shall be restrained from denigrating the other parent or a member of his or her household to or in the presence of the child and from permitting another person to do so.
26. Each parent shall keep the other informed of his or her current mobile telephone number.
27. In the event that a parent proposes to change the place where the child normally lives then he or she shall provide the other parent with not less than 21 days prior written notice of the new address.
28. The matter is listed for directions before Judge Dunkley at 12 noon on 20 July 2022 at Dubbo.
THE COURT FURTHER NOTES THAT:
B. Within 7 days of the date of these orders, the father shall pay into the mother’s personal bank account the sum of $5,000 to assist the mother and the child with relocation costs including but not limited to: bond, rent and removalist costs.
C. Within 7 days of the date of these orders, the father shall (through his solicitors) provide the mother with a list of white goods and furniture that she can collect from the father’s home including but not limited to:
a. Washing machine
b. Fridge
c. Chairs and stools
d. Bed
e. Towels
f. Sheets
g. Kettle
h. TV unit
i. Blankets
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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