Levins & Donovan

Case [2021] FCCA 802

FEDERAL CIRCUIT COURT OF AUSTRALIA

Levins & Donovan [2021] FCCA 802

File number(s): PAC 4822 of 2018
Judgment of: JUDGE NEWBRUN
Date of judgment: 22 April 2021
Catchwords: FAMILY LAW - Parenting - best interests of children - orders made
Legislation:  Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D
Cases cited:  Lansa & Clovelly [2010] FamCA 80
Number of paragraphs: 245
Date of last submission/s: 18 March 2021
Date of hearing: 17 and 18 March 2021
Place: Parramatta
Counsel for the Applicant: Ms Katie
Counsel for the Respondent: Ms Freelander
Counsel for the Independent Children's Lawyer: Mr Cook

ORDERS

PAC 4822 of 2018
BETWEEN:

MS LEVINS

Applicant
AND:

MR DONOVAN

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

22 APRIL 2021

THE COURT ORDERS THAT:

1.That the Mother and Father shall have equal shared parental responsibility for X, born in 2015 (“the child”).

2.That the child shall live with the Mother from 5.00pm on Friday 23 April 2021.

3.That the Mother and Father shall forthwith do all acts and things and sign all documents to:

(a)Transfer the child’s involvement with the Cerebral Palsy Alliance Centre in Suburb B to the Cerebral Palsy Alliance Centre in Suburb C

(b)Enable the Mother to co-ordinate with D Centre and/or any other NDIS support co-ordinator in relation to the child’s current NDIA-managed NIDIS funding.

4.That the child shall spend time with the Father as follows, commencing Friday 7 May 2021:

(a)During school terms, each alternate weekend from the conclusion of school on Friday (or 3:00pm if a non-school day) until 5:00pm on Sunday.

(b)For half of the NSW school holidays as agreed and failing agreement, as follows:

(i)For the first half of the school holidays in years ending in an even number; and

(ii)For the second half of the school holidays in years ending in an odd number.

(c)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an even number.

(d)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an odd number.

(e)From 9:00am until 5:00pm on Father’s Day.

(f)At other times as agreed between the Mother and Father from time to time.

5.That the child’s time with the Father pursuant to these Orders, shall be suspended at the following times when the child shall live with the Mother:

(a)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an odd number.

(b)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an even number.

(c)From 9:00am until 5:00pm on Mother’s Day.

(d)At other times as agreed between the Mother and Father from time to time.

6.That the Mother and Father shall each have liberal and flexible telephone communication with the child such that:

(a)The Father shall telephone the child when she is living with the Mother on a number provided by the Mother;

(b)The Mother shall telephone the child when she is spending time with the Father on a number provided by the…

Continue reading Levins & Donovan

Sign in free to access the full text

Details
AGLC
Levins & Donovan [2021] FCCA 802
Case
[2021] FCCA 802
Decision Date

CaseChat Overview and Summary

In the matter of PAC 4822 of 2018, Ms Levins (the Mother) and Mr Donovan (the Father) were the parties before Newbrun J. The dispute concerned parenting arrangements for their child, X, born in 2015.

The court was required to determine the terms of parenting orders, including the allocation of parental responsibility, the child's living arrangements, and the time the child would spend with each parent. Further issues included provisions for communication between the parents and the child, arrangements for school holidays and special days, and specific orders regarding the child's involvement with support services and educational institutions. The court also addressed orders restraining negative communication about a parent and an injunction against the Father's use of illicit substances.

Newbrun J applied the principles of the *Family Law Act 1975* (Cth), particularly section 60CC concerning the best interests of the child. The court considered the child's age, the nature of the relationships with each parent and other significant persons, and the extent to which each parent had participated in major long-term decisions and spent time with the child. The court also weighed the practical difficulties and expenses associated with the proposed arrangements. The evidence indicated that the child was too young to express a view. The court noted the Mother's positive parenting capacity and the child's positive relationships with her stepsiblings and extended family. The court also considered the need to protect the child, referencing the Mother's concerns about the Father's past behaviour.

The court made orders for equal shared parental responsibility, with the child to live with the Mother from a specified date. The orders detailed a specific schedule for the child's time with the Father, including alternate weekends during school terms and a division of school holidays. Provisions were made for communication, changeovers, and the exchange of information regarding the child's education and welfare. An injunction was granted restraining the Father from using illicit substances within 48 hours prior to and during his time with the child, and both parents were restrained from speaking negatively about each other in the child's presence. The parties were also ordered to undertake a post-separation parenting program.

Orders

Orders of the court

PAC 4822 of 2018

BETWEEN:

MS LEVINS

Applicant

AND:

MR DONOVAN

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

22 APRIL 2021

THE COURT ORDERS THAT:

1. That the Mother and Father shall have equal shared parental responsibility for X, born in 2015 (“the child”).

2. That the child shall live with the Mother from 5.00pm on Friday 23 April 2021.

3. That the Mother and Father shall forthwith do all acts and things and sign all documents to:

(a) Transfer the child’s involvement with the Cerebral Palsy Alliance Centre in Suburb B to the Cerebral Palsy Alliance Centre in Suburb C

(b) Enable the Mother to co-ordinate with D Centre and/or any other NDIS support co-ordinator in relation to the child’s current NDIA-managed NIDIS funding.

4. That the child shall spend time with the Father as follows, commencing Friday 7 May 2021:

(a) During school terms, each alternate weekend from the conclusion of school on Friday (or 3:00pm if a non-school day) until 5:00pm on Sunday.

(b) For half of the NSW school holidays as agreed and failing agreement, as follows:

(i) For the first half of the school holidays in years ending in an even number; and

(ii) For the second half of the school holidays in years ending in an odd number.

(c) From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an even number.

(d) From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an odd number.

(e) From 9:00am until 5:00pm on Father’s Day.

(f) At other times as agreed between the Mother and Father from time to time.

5. That the child’s time with the Father pursuant to these Orders, shall be suspended at the following times when the child shall live with the Mother:

(a) From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an odd number.

(b) From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an even number.

(c) From 9:00am until 5:00pm on Mother’s Day.

(d) At other times as agreed between the Mother and Father from time to time.

6. That the Mother and Father shall each have liberal and flexible telephone communication with the child such that:

(a) The Father shall telephone the child when she is living with the Mother on a number provided by the Mother;

(b) The Mother shall telephone the child when she is spending time with the Father on a number provided by the Father; and

(c) The Mother and Father shall encourage and facilitate the children communicating with the other parent pursuant to the provisions of these Orders.

7. That to facilitate the child communicating with the other parent:

(a) Each parent acknowledges that the child is at liberty to telephone the other parent at any time that does not interfere with the activities and events in each parent’s household;

(b) Each parent shall provide the child with access to a telephone and such assistance as the child may require to communicate with the other parent; and

(c) Communication with the other parent may include telephone, text message, skype, face time, and similar software and technology from time to time.

8. That unless otherwise specified in these Orders or agreed between the Mother and Father from time to time, the parties shall meet at the Suburb E McDonalds for changeover.

9. That unless otherwise specified in these Orders for the purpose of calculating the school holiday periods the Mother and Father agree that:

(a) All school holidays shall be deemed to commence at the conclusion of school on the last day of the school term for NSW students;

(b) All school holiday periods shall be deemed to conclude at the commencement of the first day of the new school term for NSW students;

(c) For the purposes of calculating half of the school holidays, the Mother and Father will count the number of nights from the night of the commencement of the school holidays (as stipulated in Order 9.1) to the last night of the school holidays (as stipulated in Order 9.2). In the event that there are an uneven amount of nights in the school holiday period, then the parent spending the first half of the school holiday period with the child shall spend the additional night with the child for that school holiday period; and

(d) Changeover during the school holidays, unless otherwise provided for in these Orders, shall be at 5:00pm.

10. That the Mother and Father shall keep each other advised of their contact telephone numbers and shall advise the other parent within twenty-four (24) hours of any change to their contact telephone number/s.

11. That the Mother and Father shall keep the other advised of their residential address and provide each other with no less than twenty-one (21) days’ notice in writing of any intention to change address.

12. That the Mother and Father do all things necessary to authorise the child’s school to provide to the other parent, on a regular basis, copies of all school reports, school newsletters and other information regarding the child’s school activities.

13. That the Mother and Father be entitled to attend all school functions, sports carnivals and other school events in which parents are invited to attend.

14. That the Mother and Father be entitled to obtain directly from any school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the Mother and Father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

15. That the Mother and Father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child. That the Mother and Father do all things necessary to authorise the child’s school to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.

16. That the Mother and Father be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing.

17. That the Mother and Father be restrained from speaking or permitting any other person to speak about these proceedings in the child’s presence or hearing.

18. That the Father be restrained by injunction from using illicit substances within forty-eight (48) hours prior to and during his time with the child.

19. The parties shall communicate with each other by email and only in relation to the child or issues affecting the child. They shall only communicate with each other by text message in the case of emergency relating to the child.

The parties shall forthwith take all necessary steps to enrol in, and complete, a post separation parenting group with a focus on improving parental communication and cooperation. (F Counselling may be of assistance to the parties in identifying a suitable course.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

The Court has had regard to the documentary material referred to above, together with the oral evidence given by each of the parties’, Mr H, and the family report writer. Throughout these Reasons for Judgment the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In order to limit the size of these Reasons, not all factual issues will be addressed. However, those that are important to the Court’s determination will be considered either in this section or whilst addressing the section 60CC factors.Mother’s evidence The Mother and Father are both aged 24 years. The Mother is a full-time homemaker. The Father is not presently in paid employment. He receives Centrelink benefits consisting of parenting payment, family tax benefit and carer allowance totalling about $1,200 per fortnight. He resides in a three-bedroom residence at Suburb K on the Region G with the child. This house is rented by the Father through the L Services Aboriginal Association; when the child was born hospital staff told the parties’ that the child was aboriginal by descent. The parties’ commenced cohabitation in 2014. They separated in about early April 2016. The Mother has had two children with her current partner Mr H; M born in 2018, and N born in 2019. The Mother has been in a relationship with Mr H since about 2017. The Mother, Mr H, and their two children, presently reside at Suburb O in Sydney’s West. During the parties’ relationship, the Mother was not in employment and she was the child’s primary carer. At separation, the Mother moved to the home of the maternal grandmother. About two weeks later the parties’ agreed to an equal shared care arrangement in relation to the child. The Mother decided not to facilitate the child spending time with the Father between mid July 2016 and Father’s Day 2016 because she had seen a photo on Snapchat depicting what she believed to be a plate of illicit drugs at the Father’s house. On or about Father’s Day 2016, the Mother agreed to facilitate the child spending some time with the Father. At about this time, whilst the Mother was having a nap at the Father’s residence at this time, the Father took the Mother’s mobile phone and read through certain messages on the phone. The Father, then angry, woke up the Mother, verbally abused her, and accused her of cheating on him. The Father had friends at his residence at that time and they, together with the Father, physically ejected the Mother from the Father’s residence. The Mother was extremely distressed and intentionally hit the door leaving a hole. The police were called and requested the Mother to leave the premises. They declined to assist the Mother in recovering the child from the Father, informing the Mother that she needed to apply to the Family Law Court. The next day the Mother attended a Legal Aid office and spoke to a solicitor. The solicitor called the Father in the Mother’s presence, requesting that the child be returned to the Mother. The Father did not return the child to the Mother after that phone call.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Court gives significant weight to this need to protect primary consideration.Section 60CC(3) - Additional Considerations (a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views 216. The child is too young to express a relevant view.(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child) The Court refers to its discussion above under the meaningful relationship primary consideration. The child enjoys positive relationships with her stepsiblings, the Mother’s partner, and the paternal great-grandfather, and members of the Father’s extended family.(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child The Father has taken such opportunities. The Mother has sought to take such opportunities however, post separation, the Father did not reliably nor in a timely fashion provide relevant information to the Mother in relation to the child’s cerebral palsy treatment, and nor did he involve the Mother in the selection of the child’s present primary school. (ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child The Mother has maintained the child satisfactorily when spending time with the child. As to the Father, the Court refers to its discussion above under the need to protect primary consideration. Otherwise, he has maintained the child satisfactorily when caring for the child. (d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living There should be no detrimental effect upon the child’s meaningful relationship with the Father should she now live with the Mother and spend time with the Father. The child should be able to successfully transition from living with the Father to living with the Mother without experiencing significant emotional disquiet. The Court accepts the evidence of the Mother in this context and takes into account, inter alia, the Mother’s positive parenting capacity for the child and the child’s positive relationships with her stepsiblings. The Court refers to the evidence of the family report writer which is consistent with this view. (e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis