FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANCEFIELD & LANCEFIELD | [2020] FCCA 1674 |
| Catchwords: FAMILY LAW – Parenting – final – at separation mother voluntarily admitted to mental health facility – long term major depressive disorder – mother returns to live with her parents and takes a job in another region of NSW – mother’s mental health significantly improves – parents geographically distant across NSW – interim orders for equal shared parental responsibility and time with mother – father reads and stores mother’s electronic communications and internet searches – father unilaterally and without notice relocates, enrols children in new school and advises new school mother is to have restricted contact with school during litigation and despite interim orders – father has engaged in coercive or controlling behaviour, unilateral exercise of parental responsibility and has controlled and minimised and failed to promote relationship between children and mother – consideration of mother’s low to moderate risk of relapse of a major depressive disorder – consideration of likelihood of a more nurturing environment in mother’s household – consideration of children’s views when one child wants to stay and the other child wants to move – considerations of the benefits of stability of existing residence and risks inherent in a move – finding greatest weight to be given to risks associated with father’s conduct – children’s best interests served by relocation to live primarily with mother – practical difficulties of geographic distance – some school term weekends and half school holidays with father – ancillary orders. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 60CC(3), 65AA, 117, 117(2A), 117(4), 117(5) Evidence Act1995 (Cth), ss.140(1), 140(2), 140(2)(c) |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336. Carlson & Fluvium [2012] FamCA 32 Adamson and Adamson (2014) FLC 93-622 In The Marriage of Harrison and Woolard (1995) FLC 92-598 In the Marriage of Brear and Corcoles-Alfaro [1997] FLC 92-768 In The of Marriage of Jurss (1976) 9 ALR 455 |
| Applicant: | MS LANCEFIELD |
| Respondent: | MR LANCEFIELD |
| File Number: | WOC 562 of 2018 |
| Judgment of: | Judge B Smith |
| Hearing dates: | 5 September 2019, 6 September 2019, 19 February 2020, 20 February 2020 21 February 2020, 1 June 2020 |
| Date of Last Submission: | 1 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Counsel for the Respondent: | Mr Sansom S.C. |
| Solicitors for the Respondent: | Powe & White Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr White |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
Parental Responsibility
The parties have equal shared parental responsibility for the children X born in 2009 and Y born in 2011 (hereinafter “the children”).
Live and spend time arrangements until 23 December 2020
That from the date of these Orders until 23 December 2020, the children live with the Father.
From the date of these Orders until 23 December 2020, the children spend time with the Mother during school terms…
Keep reading for free
Create a free CaseChat account to read LANCEFIELD & LANCEFIELD and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] FCCA 1674
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific orders for equal shared parental responsibility, the children's living arrangements, and the time each parent would spend with the children, both in the short term until 23 December 2020 and thereafter. Further issues included the arrangements for changeovers, communication between parents and children, the involvement of schools and other organisations, and the keeping of each parent informed about the children's welfare. The court also addressed restraints on parental conduct and specific provisions relating to medical and psychological care, including the relocation of the children and the release of relevant reports.
The court applied principles of the *Family Law Act* to establish orders for parental responsibility and the children's living and spending time arrangements. These orders detailed specific schedules for weekdays, weekends, and school holidays, with provisions for notice and agreement between the parties. The court also made orders regarding communication, ensuring both parents could maintain contact with the children. Provisions were made for the children's schooling and medical care, including the appointment of new practitioners and enrolment in a new school. Restraints were imposed on parents to prevent derogatory remarks about each other in the children's presence and to avoid discussing proceedings with the children.
The court made detailed orders regarding the children's living and spending time arrangements, including specific provisions for communication, school involvement, and medical care. The orders also included directions for the payment of costs to the Legal Aid Commission of New South Wales by both the Mother and the Father. Further provisions were made to supplement existing consent orders regarding the children's vaccinations.
Orders
Orders of the court
Parental Responsibility
1.
The parties have equal shared parental responsibility for the children X born in 2009 and Y born in 2011 (hereinafter “the children”).
Live and spend time arrangements until 23 December 2020
2.
That from the date of these Orders until 23 December 2020, the children live with the Father.
3.
From the date of these Orders until 23 December 2020, the children spend time with the Mother during school terms as follows:
(a) For three weekends as nominated by the Mother from after school at 3.30pm or 5.00pm Friday (if such time is to be spent in the Region B) until 4.30pm Sunday, with such time to take place in Town C or in the Region B, and she is to provide to the Father one (1) weeks’ notice of the weekend and details of her accommodation with the children if she intends to spend the time with the children in Town C. In the event she intends to spend time in the Region B, and is unable to travel to Town C to collect the children, the parents are to effect changeover at Town D at the commencement and conclusion of time;
(b) In addition to the Mother’s time in accordance with Order 3(a), the Mother be at liberty to spend time for two (2) nights with the children during the school week, when she has two (2) rostered days off, from after school until the commencement of school the following morning, provided the Mother travels to Town C for such time and provides the Father with seven (7) days’ notice including details of her accommodation in Town C.
4.
During school holiday periods for the remainder of 2020 the children spend time with the Mother as follows:
(a) One half of each shorter school holiday period at the conclusion of Terms 2 and 3 as agreed, and failing agreement for the second half in 2020.
December 2020 Christmas School holidays
5.
Notwithstanding the other Orders, during the December 2020 Christmas school holidays, the children spend time with the parents as follows:
(a) From the last day of school Term until 4.00pm on 23 December 2020, the children live with the Father;
(b) From 4.00pm on 23 December 2020 the children live with the Mother;
(c) From 4.00pm on 30 December 2020 until 4.00pm on 13 January 2020 the children spend time with the Father;
(d) From 4.00pm on 13 January 2020 and thereafter the children live with the Mother.
Live and spend time arrangements from 23 December 2020
6.
That from 4.00pm on 23 December 2020 the children live with the Mother.
7.
From 23 December 2020 the children spend time with the Father as follows:
(a) Three weekends during school terms from after school or 3.00pm Friday until 4.30pm Sunday as agreed between the parties and failing agreement for the second, fifth and eighth weekend of the school term. The Father is to provide one (1) weeks’ notice to the Mother of the weekend and details of his accommodation with the children;
(b) During school holiday periods, for half of all school holiday periods as agreed and failing agreement, for the first half in all even numbered years and the second half in all odd numbered years; and
(c) Other times as agreed between the parties in writing.
8.
That in addition to the children’s time with the Father pursuant to Order 7(a) herein, the Father be at liberty to spend time with the children on an additional one (1) weekend per school term provided that the Father has given the mother no less than twenty-eight (28) days’ notice in writing of his intention to do so and the Father shall collect and deliver the children to and from the children’s school, or if agreed from the mother’s residence, from the commencement and conclusion of such time.
(a) That the Father be restrained from nominating the weekend of the mother’s birthday or the children’s birthday’s in exercising additional time with the children unless otherwise agreed between the parents in writing.
9.
That if the following time falls during a period the children are otherwise with the Father, and if the Mother provides no less than fourteen (14) days’ notice in writing of her intention to do so and she travels to the Town C area or such other area as is agreed in writing to do so, then, the Father's time be suspended, and the children spend time with the Mother as follows:
(a) On Mother’s day from 10.00am until 4.30pm;
(b) On the children’s birthday for four (4) hours if such time falls on a day the children are with the Father;
(c) For four (4) hours on the Mother’s birthday if such time falls on a day the children are with the Father;
(d) From 3.00pm Good Friday until 9.00am Easter Sunday in odd numbered years;
(e) From 9.00am Easter Sunday until 3.00pm Easter Monday in even numbered years;
(f) From 4.00pm Christmas Eve until 4.00pm Christmas Day in even numbered years; and
(g) From 4.00pm Christmas Day until 4.00pm Boxing Day in odd numbered years.
10.
That if the following time falls during a period the children are otherwise with the Mother, and if the Father provides no less than fourteen (14) days’ notice in writing of his intention to do so and he travels to the Region B area or such other area as is agreed in writing to do so, then, that the Mother’s be suspended and the children spend time with the Father as follows:
(a) On Father’s Day from 10.00am until 4.30pm;
(b) On the children’s birthday for four (4) hours if such time falls on a day the children are with the Mother;
(c) For four (4) hours on the Father’s birthday if such time falls on a day the children are with the Mother;
(d) From 3.00pm Good Friday until 9.00am Easter Sunday in even numbered years;
(e) From 9.00am Easter Sunday until 3.00pm Easter Monday in odd numbered years;
(f) From 4.00pm Christmas Eve until 4.00pm Christmas Day in odd numbered years; and
(g) From 4.00pm Christmas Day until 4.00pm Boxing Day in even numbered years.
Changeovers
11.
That for the purposes of changeovers, unless specified otherwise in a particular Order, the parties shall meet at Town D at the commencement and conclusion of time.
Communication
12.
That the Father be at liberty to have telephone communication with the children each evening they are not in his care between 5.00pm and 7.00pm, with the Father to phone the children and the Mother shall:
(a) Facilitate such communication between the children and the Father;
(b) Ensure the children are given privacy during their telephone communication; and
(c) Ensure the children have access to a working telephone and the Father is provided with an appropriate contact number.
13.
That the Mother be at liberty to have telephone communication with the children each evening they are not in her care between 5.00pm and 7.00pm, with the Mother to phone the children and the Father shall:
(a) Facilitate such communication between the children and the Father;
(b) Ensure the children are given privacy during their telephone communication; and
(c) Ensure the children have access to a working telephone and the Mother is provided with an appropriate contact number.
School
14.
A copy of these Orders may be provided to any school either child attends.
15.
That the parties sign all documents to allow the school to provide copies of all school reports, newsletters and other information to both parties.
16.
That each of the parties are permitted to liaise directly with the children’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress, copies of school reports and that both parties are to authorise the school(s), sporting bodies and/or other organisations to facilitate this.
17.
That each party be entitled to attend all events involving the children including, but not limited to:-
(a) Sporting fixtures;
(b) Extracurricular activities that allow for parental attendance or participation;
(c) School functions and events that allow for parental attendance or participation, and the party who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parties.
Keeping informed
18.
That each party shall ensure the other party is kept informed as soon as is reasonably practicable of:-
(a) any medical problems or illness suffered by the child/ren, whilst in their care;
(b) any medication that has been prescribed for the child/ren;
(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child/ren;
(d) any social, school or religious functions which the child/ren is to attend;
(e) their residential address;
(f) their telephone contact number; and
(g) any other matter relevant to the welfare of the child/ren.
Restraints
19.
That each party shall refrain from making critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of any of the children and that each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the children.
20.
That the parties be restrained from discussing the proceedings or any other adult issues with the children or in the presence or hearing of the children including with whom the children may live.
Medical and psychological care
21.
That the parties do all things necessary to ensure the children continue attending upon their counsellors, and engage a new counsellor and a new general practitioner for the children near the Mother’s residence so that they may commence consulting with them as soon as possible after their relocation.
22.
That leave be granted for the release a copy of the Family Report prepared by Mr E and his supplementary Report dated 19 May 2020 to the counsellor for the children to assist them in their relocation and change of residence.
23.
The children shall continue to attend upon a counsellor for as long as is recommended by the counsellor or treating practitioner.
24.
That the Mother continue to attend upon her counsellor, psychologist or such other persons as recommended by her general practitioner from time to time.
25.
Both parties do all things necessary to ensure the children are enrolled in a school within the Region B region prior to the commencement of the 2021 school year.
Independent Children’s Lawyers Costs
26.
The Mother shall pay $6,732 to the Legal Aid Commission of New South Wales within three (3) months of these Orders. The Legal Aid Commission of New South Wales as the beneficiary of this Order may either defer the time for payment and / or waive the obligation for payment in part or in whole.
27.
The Father shall pay $6,732 to the Legal Aid Commission of New South Wales within three (3) months of these Orders. The Legal Aid Commission of New South Wales as the beneficiary of this Order may either defer the time for payment and / or waive the obligation for payment in part or in whole.
Vaccinations (machinery provisions)
28.
If for any reason the children’s vaccinations pursuant to the Consent Orders dated 19 February 2020 (“the Consent Orders”) have not been completed prior to 23 December 2020, then the following Orders will apply to supplement and vary as necessary the Consent Orders:
(a) The parties are to do all things reasonably necessary to agree on and appoint a general practitioner near the Mother’s residence for the children by 1 February 2021, and;
(i) failing agreement by 1 February 2021, for the purposes of the Consent Orders only, the Mother’s general practitioner shall be appointed by these Orders as the children’s general practitioner for the purpose of giving effect to the Consent Orders.
(b) For the purposes of the Consent Orders:
(i) the reference to “Dr F” shall be deemed to be a reference to the children’s new or appointed general practitioner.
(ii) the reference to “the father” shall be deemed to be a reference to “the mother”.
(iii) the children’s new or appointed general practitioner is to be given a copy of these Orders and of the Consent Orders.
NOTES
(A) That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(B) Pursuant to s.65DA(2) of the Family Law Act, 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 the Fact Sheet, attached hereto and these particulars are included in these Orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.