FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lacona & Lacona [2021] FedCFamC2F 200
File number: MLC 9099 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 September 2021 Catchwords: FAMILY LAW – interim parenting – urgent abridgment – relocation – where mother has relocated interstate with the child – mother to return child’s residence – independent children’s lawyer appointed – child impact report ordered – orders made. Legislation: Family Law Act 1975 (Cth), s 60CC Cases cited: Adamson& Adamson [2014] FamCAFC 232
Franklyn & Franklyn [2019] FamCAFC 256
Gerner v Victoria [2020] HCA 48
Morgan & Miles [2007] FamCA 1230
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Stringer & Nissen (No. 2) [2019] FamCAFC 185
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 22 September 2021 Place: Melbourne Counsel for the Applicant: Ms P Villella Solicitor for the Applicant: Perry Weston Lawyers Solicitor for the Respondent: Romer Maud Family Lawyers ORDERS
MLC 9099 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LACONA
Applicant
AND: MS LACONA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Within 28 days the Respondent Mother return the child X born in 2015 ("X") residence to the State of Victoria.
2.The Respondent Mother do all acts and things to keep the Applicant Father informed in a timely manner of her arrangements to return including applications for any necessary permits.
3.Upon X returning to the State of Victoria and following any government mandated period of isolation, X live with the Applicant Father as follows:
(a)For a period of one month:
(i)In each alternate week from the conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 9am if a non-school day) on the following Monday;
(ii)In each alternate week from the conclusion of school on Thursday (or 3pm if a non-school day) until the commencement of school on Friday morning (or 9am if a non-school day)
(b)Thereafter and until further Order:
(i)In each alternate week from the conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 9am if a non-school day) on the following Monday;
(ii)In each alternate week from the conclusion of school on Wednesday (or 3pm if a non-school day) until the commencement of school on Friday morning (or 9am if a non-school day)
(iii)For one half of the long summer holidays on a week about basis commencing the last day of school
4.X lives with the Respondent Mother at all other times.
Independent Children's Lawyer
5.Pursuant to section 68L(2) of the Family Law Act 1975 the X born in 2015 ('the child') be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a…
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CaseChat Overview and Summary
The court decided that the matter was urgent and warranted an abridgment. It concluded that the mother's relocation was not in the child's best interests and ordered her to return the child to Victoria within 28 days. The court set out detailed interim parenting arrangements, specifying the periods the child would live with each parent, including alternating weekends and school holidays. The court also appointed an Independent Children's Lawyer to represent the child's interests and ordered the preparation of a Child Impact Report to assess the relocation's impact on the child. The court emphasised the importance of the parties communicating effectively and refraining from discussing the proceedings with the child.
The court's orders include the mother returning the child to Victoria, detailed parenting schedules, the appointment of an Independent Children's Lawyer, and the preparation of a Child Impact Report. The matter is adjourned for a Directions Hearing on 17 November 2021. The court also noted that the specifics of the obligations and consequences of contravening the orders, as well as family violence provisions, are included in the orders.
Orders
Orders of the court
MLC 9099 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LACONA
Applicant
AND:
MS LACONA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. Within 28 days the Respondent Mother return the child X born in 2015 ("X") residence to the State of Victoria.
2. The Respondent Mother do all acts and things to keep the Applicant Father informed in a timely manner of her arrangements to return including applications for any necessary permits.
3. Upon X returning to the State of Victoria and following any government mandated period of isolation, X live with the Applicant Father as follows:
(a) For a period of one month:
(i) In each alternate week from the conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 9am if a non-school day) on the following Monday;
(ii) In each alternate week from the conclusion of school on Thursday (or 3pm if a non-school day) until the commencement of school on Friday morning (or 9am if a non-school day)
(b) Thereafter and until further Order:
(i) In each alternate week from the conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 9am if a non-school day) on the following Monday;
(ii) In each alternate week from the conclusion of school on Wednesday (or 3pm if a non-school day) until the commencement of school on Friday morning (or 9am if a non-school day)
(iii) For one half of the long summer holidays on a week about basis commencing the last day of school
4. X lives with the Respondent Mother at all other times.
Independent Children's Lawyer
5. Pursuant to section 68L(2) of the Family Law Act 1975 the X born in 2015 ('the child') be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a) Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and
(b) Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.
Child Impact Report
6. Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the child X born in 2015 ('the child') are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children's Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
7. Part 1 of the event will occur by video, using Microsoft Teams, on 26 October 2021 with:
(a) the Applicant to attend at 9.00am; and
(b) the Respondent to attend at 10.30am
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
8. Part 2 of the event will occur in person at the Melbourne registry on the morning of 28 October 2021. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
9. Each party will do all things necessary to ensure the child attends upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
10. The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
11. Not later than 4.00 pm on 29 September 2021 the parties must provide their contact telephone numbers and email addresses to VIC.CCS@fcfcoa.gov.au.
12. Pursuant to order 6 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a) any agreement reached between the parties;
(b) identification of key issues requiring resolution;
(c) any views expressed by the child and any matters (such as the child's maturity or level of understanding) that would affect the weight that the court should place on those views;
(d) the impact of the issues/dispute before the Court on the Choose an item.;
(e) any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
13. Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
14. The Court Child Expert shall be at liberty to inspect any material filed by the parties.
15. The matter be adjourned to the Second Return List at the Federal Circuit and Family Court of Australia at Melbourne on 17 November 2021 at 12.00pm for Directions Hearing.
16. The parties file and serve any material they seek to rely on 7 days before the adjourned date.
17. The parties have liberty to apply.
AND THE COURT ORDERS BY CONSENT THAT:
18. For the purpose of changeover when not occurring at school it shall occur inside the foyer of McDonalds at Suburb B, unless otherwise agreed in writing.
19. The parties immediately inform the other of any serious injury sustained by X whilst in their respective care, or should X require urgent medical attention.
20. The parties communicate via text message and email in relation to child related matters save for in an emergency when parties may communicate by telephone.
21. The parties by way of injunction are restrained from:
(a) Denigrating the other party or the other party's family to the child or any other person in the presence of the child;
(b) Discussing these proceedings with the child or within the presence and/or hearing of the child.
22. Pursuant to s.65DA (2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. The parties agree the issue of their time with the child for Christmas 2021 will be discussed at the next hearing on 17 November 2021.
B. Pursuant to ss.65DA(2) and 62B 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.
C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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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