FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTEL & MARTEL | [2013] FCCA 525 |
| Catchwords: FAMILY LAW – Parenting proceedings – two boys aged 12 years and 10 years at time of hearing – interim orders made 14 February 2012 that both children live with the mother and spend time with the father not complied with – older boy living with father at time of hearing and not spending time with the mother – younger boy living with mother at time of hearing and not spending time with the father – boys spending time with each other only at school and at contact centre – intense conflict between parents – issue of possible alienation of elder child from mother – consideration of importance of the brothers living with each other or the detriment of living apart – consideration of whether children should be quarantined from living with one parent – best interests of the children. |
| Legislation: Family Law Act1975 (Cth) Part VII |
| Cases cited: Goode & Goode [2006] Fam CA 1346; (2006) 36 Fam LR 422; FLC 93-286 Calvert & Calvert [2008] FMCAfam 101 Pierce & Pierce [2010] FMCAfam 1137 |
| Applicant: | MS MARTEL |
| Respondent: | MR MARTEL |
| File Number: | NCC 128 of 2012 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 20 & 21 September 2012 22, 23 & 30 November 2012 |
| Date of Last Submission: | 4 February 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 13 June 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Mr K Byrnes |
| Solicitors for the Applicant: | Byrnes & Cox Lawyers |
| Counsel for the Respondent: | Mr D Alexander |
| Solicitors for the Respondent: | Not Applicable |
| Counsel for the Independent Children’s Lawyer: | Mr B Kelly |
| Solicitors for the Independent Children’s Lawyer: | Jennifer Blundell & Associates |
ORDERS
All previous parenting orders in relation to the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”) (“the children”) are discharged.
The mother have sole parental responsibility for the children.
The children live with the mother.
From the date of these orders until Friday 11 October 2013 the children not spend any time with the father or communicate with him by any means.
Until 11 October 2013 the father is restrained from communicating or attempting to communicate with either of the children by any means either directly or indirectly including but not limited to letter, greetings card, package, parcel, telephone, text message, facebook, twitter, facetime or any other electronic means and is further restrained from causing or permitting any other person on his behalf to communicate with or attempt to communicate with either of the children by any such or other means.
From 11 October 2013 the children spend time with the father as follows:
(a)During school terms each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, or Tuesday if the Monday is a Public Holiday;
(b)For half of all school holidays being the first half in odd numbered years and the second half in even numbered years with the first half defined as…
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- MARTEL & MARTEL [2013] FCCA 525
- Case
- [2013] FCCA 525
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the specific orders regarding parental responsibility, living arrangements, and time spent between the children and each parent. Additionally, the court had to consider orders relating to communication between the parents and the children, geographical restrictions on the parents' residences, and the children's schooling and counselling. The court also addressed the issue of international travel restrictions for the children and the parents' obligations regarding communication and disclosure of information.
Judge Coakes discharged all previous parenting orders and made new orders. The mother was granted sole parental responsibility, and the children were to live with her. For a period, the children were not to spend any time with or communicate with the father, and the father was restrained from any communication with them. From a specified date, the father was to spend time with the children on alternate weekends during school terms, half of all school holidays, and on specific public holidays, with certain suspensions to these arrangements. The court also made detailed orders regarding the handover of the children, communication protocols, and the father's attendance at schools. Further orders addressed the mother's relocation, the children's schooling, ongoing counselling for both parents, and the exchange of personal details. Both parents were restrained from denigrating each other in the children's presence and from discussing the proceedings with the children. The court also mandated further therapeutic counselling for the parents and established procedures for resolving future disputes. Finally, orders were made to prevent the children from leaving the Commonwealth of Australia, with a request for their names to be placed on the Australian Federal Police Watch List.
Orders
Orders of the court
1.
All previous parenting orders in relation to the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”) (“the children”) are discharged.
2.
The mother have sole parental responsibility for the children.
3.
The children live with the mother.
4.
From the date of these orders until Friday 11 October 2013 the children not spend any time with the father or communicate with him by any means.
5.
Until 11 October 2013 the father is restrained from communicating or attempting to communicate with either of the children by any means either directly or indirectly including but not limited to letter, greetings card, package, parcel, telephone, text message, facebook, twitter, facetime or any other electronic means and is further restrained from causing or permitting any other person on his behalf to communicate with or attempt to communicate with either of the children by any such or other means.
6.
From 11 October 2013 the children spend time with the father as follows:
(a) During school terms each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, or Tuesday if the Monday is a Public Holiday;
(b) For half of all school holidays being the first half in odd numbered years and the second half in even numbered years with the first half defined as commencing at the conclusion of school on the last day of the school term and concluding at 7.00pm on the Saturday closest to the mid point of the whole holiday period and with the second half commencing at 7.00pm on the Saturday closest to the mid point of each school holiday period and concluding at 7.00pm on the last Sunday of the school holiday period;
(c) If not already spending time with the father from 9.00am until 5.00pm on Father’s Day;
(d) If not already spending time with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years and from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years.
7.
The time the children are to spend with their father is suspended:
(a) From 9.00am until 5.00pm on Mother’s Day;
(b) From 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years and from 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years;
With the children to live with their mother during these times;
8.
The implementation of the above orders for the children to live with and spend time with each parent is to be effected, if other than at the children’s schools by the mother or her nominee known to the children delivering them to the father or his nominee known to the children at McDonald’s Family Restaurant at [location omitted] at [P] and with the father or his nominee known to the children returning the children to the mother or her nominee known to the children at the same place at the conclusion of his time with them.
9.
From 11 October 2013 the children shall communicate with the father by telephone each Wednesday evening between the hours of 7.00pm and 7.30pm implemented by the father telephoning the mother’s mobile telephone number and the mother ensuring that the children are available and able to speak with the father, that the mother is located in a place where the telephone has reception, that the telephone is not switched to an answering service or otherwise engaged and that the battery is charged.
10.
The father is restrained from attending any school the children may be attending from the date of these orders until 11 October 2013 and is further restrained from being within 100 metres of any such school within 30 minutes of the times when the children are either commencing or concluding their ordinary school day at such schools.
11.
Upon the mother relocating the children’s place of residence from her current place of residence at [W] to a place within a radius of 20 kilometres of [P] Post Office the father is restrained from changing his place of residence to a place within a radius of 20 kilometres of where the children are living.
12.
Until such time as the mother relocates her place of residence from [W] to [P] the father is restrained from visiting the residence of the mother at [address omitted], [W] and is further restrained from being within 100 metres of such address at any time.
13.
The father is restrained from allowing either [X] or [Y] or both to remain in his care, presence or residence at times other than those set out in these orders unless with the written consent of the mother.
14.
If either of the children make contact with the father at times outside the times prescribed in these orders, unless with the written consent of both parties, the father is:
(a) To telephone the mother’s mobile telephone immediately and inform her of the following:
(i) That one or both of the children has made contact with him;
(ii) The method of contact;
(iii) How the child or the children made contact;
(iv) Names of any persons who facilitated the child or children making contact with the father;
(v) The father’s location;
(vi) The child or children’s location.
(b) Is to inform and instruct the child or children with him that neither is permitted to remain with him or in his care;
(c) To cause the child or children to be delivered to the mother’s residence immediately;
(d) Is not to permit the child or children to enter or remain at his place of residence or property then occupied by him.
15.
If the father contacts either of the children outside the times prescribed by these orders without the written consent of the mother or allows either child to remain at his place of residence or other place occupied by him or in his company beyond a time prescribed by these orders (without the written consent of the mother) then the time the children or either child is to spend with the father and communicate with the father pursuant to orders 6 and 7 above is suspended.
16.
The mother is permitted to relocate the children’s place of residence from [W] to a place within a radius of 20 kilometres of [P] Post Office.
17.
In the event the mother is required to terminate her lease of premises at [address omitted], [W] or other residence now rented by her to relocate the children’s place of residence to [P] in accordance with the provisions of the previous order and such termination results in a financial penalty and the mother is required to pay a bond in respect of any new rental premises which exceeds the value of the bond she had paid in respect of premises at [address omitted], [W] the mother is to serve notice by pre-paid post upon the father to his residential address at [B] of the amount required to be repaid to her to reimburse her in full for any termination costs she is required to pay and any difference in the amount required to be paid for the bond and the father is to pay such amount to the mother by forwarding such amount to her Solicitors Byrnes & Cox Lawyers, PO Box 1348, PORT MACQUARIE NSW 2444 no later than eighteen (18) days from the date of posting of the mother’s request for such reimbursement.
18.
The mother is permitted to change [Y]’s school to a school within a radius of 20 kilometres of [P] Post Office.
19.
In the event of [Y]’s school being changed from [W] School then the mother is to notify the father in writing within seven (7) days of any change to [Y]’s school and to supply particulars of the new school at which he is enrolled.
20.
Both parents are to do all acts and things necessary to enrol [X] at [S] School, [P] for the remainder of the academic year 2013 if such enrolment has not already been made.
21.
Pending the parents being advised of the success of [X]’s application to attend [S] School for the remainder of the 2013 academic year the mother may select and enrol [X] in the State High School of her choice within a distance of 20 kilometres of the [P] Post Office with the child [X] to attend such State High School in the event his application to enrol at and attend [S] School, [P] is unsuccessful.
22.
The mother is to notify the father in writing within seven (7) days of the name of the school in which [X] has been enrolled.
23.
Both parents are to do all acts and things necessary to continue the children’s counselling at Interrelate at [P] and comply with all reasonable requests of the Manager at Interrelate to facilitate such counselling.
24.
Both the mother and the father are to enrol in not later than 26 July 2013 and then attend and complete a course of therapeutic counselling with a clinician experienced in family dynamics and communication nominated by the Director of Child Dispute Services, Federal Circuit Court of Australia at Newcastle or her nominee with a view to improving their communication with each other so as to discuss matters concerning their children and each child’s relationship with each of his parents and the parent’s relationship with each other with a view to being able to talk constructively with each other about any matter concerning each child’s care, welfare and development.
25.
Within seven days of completing the therapeutic counselling referred to in Order 24 above each parent is to provide the other parent with the written confirmation of the completion of such therapeutic counselling.
26.
Each parent is to inform the other of any change of particulars of that parent’s current residential address, landline telephone number, mobile telephone number and email address and within 24 hours of such change occurring.
27.
Each parent is to advise the other parent as soon as possible by the best available means in the event of any of the following occurring:
(a) Either child being seriously injured or falling seriously ill;
(b) Either child requiring urgent medical treatment from a Doctor or Ambulance crew;
(c) Either child being involved in an accident or admitted to hospital.
28.
The mother is to authorise the Principal of the school attended by each of the children from time to time to supply to the father copies of progress reports, school reports, notices relating to pupils at such school, school letters and other notices for pupils attending such school and service of a sealed copy of these orders upon the Principal of such school is sufficient discharge of this order.
29.
From 11 October 2013 each parent is at liberty to obtain all medical records and consult each child’s medical practitioner to obtain any information such parent may require and service of a sealed copy of these orders upon each such medical practitioner is sufficient discharge of this order.
30.
Each parent is restrained from denigrating the other parent in the presence or hearing of either of the children or any other child known to [X] or [Y] including making rude comments, making insulting comments, swearing at, shouting at and making obscene gestures and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence of [X] or [Y] and any of their friends.
31.
Each parent is restrained from discussing any aspect of these proceedings with either child and is further restrained from showing either child any document filed in the proceedings including but not limited to affidavits, Family Reports, child dispute memoranda and copies of any exhibit and is further restrained from causing or permitting any other person from engaging in such conduct other than the Independent Children's Lawyer and the Family Consultant.
32.
Both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationships Centre or elsewhere or such other Family Consultant that may be agreed between the parents to assist with;
(a) Resolving any dispute between them as to the terms or operation of these Orders;
(b) Reaching an agreement about any changes to be made to these Orders arising from any change in the needs or circumstances of either [X] or [Y], in the event that any such dispute or disagreement arises concerning such changes.
33.
Other than for proceedings relating to enforcement each parent is restrained from making an application to the Court for variation of these orders arising from any of the matters referred to in Order 32(b) above without first having complied with order 32(a) above in relation to such matters.
34.
That the order made 14 February 2012 for the separate representation of [X] and [Y] is continued until 31 October 2013.
35.
Each of MR MARTEL and MS MARTEL and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of [X] born [in] 2000 (“[X]”) (male) and [Y] born [in] 2002 (“[Y]”) (male) from the Commonwealth of Australia.
36.
[X] born [in] 2000 (“[X]”) (male) and [Y] born [in] 2002 (“[Y]”) (male) be and are hereby restrained from leaving the Commonwealth of Australia.
37.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the 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 for a period of two years.
38.
Upon expiration of the period referred to in Order 37 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch 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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