McDowell & Redfield

Case [2023] FedCFamC2F 1307


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

McDowell & Redfield [2023] FedCFamC2F 1307   

File number(s): PAC 4725 of 2020
Judgment of: JUDGE OBRADOVIC
Date of judgment: 13 October 2023
Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Where Father subject of shooting – where Father previously convicted of offences – where Mother previously convicted to driving under the influence of alcohol and drugs – where each parent has history of drug use – Where Mother has history of mental health issues – where Father has mental health vulnerabilities – Allegations of family violence – Determination of parental responsibility  
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DA, 65DAA
Cases cited:

Banks & Banks [2015] FamCAFC 36

Fitzwater & Fitzwater [2019] FamCAFC 251

Isles v Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

Jones v Dunkel [1959] HCA 8

M & M (1989) 166 CLR 69

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

McDowell & Redfield [2020] FCCA 2670

MRR v GR [2010] HCA 4

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law
Number of paragraphs: 330
Date of last submission/s: 1 May 2023
Date of hearing: 17-19 April 2023, 1 May 2023
Place: Parramatta
Counsel for the Applicant: Mr Cohen
Solicitor for the Applicant: Gonzalez & Co
Solicitor for the Respondent: Mr Prakash of Prakash Lawyers
Counsel for the Independent Children's Lawyer: Ms Dalrymple
Table of Corrections
14 May 2024 At [49] the words “ The phrase “unacceptable risk” does not appear anywhere in the Act. However are deleted.

ORDERS

PAC 4725 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MCDOWELL

Applicant

AND:

MR REDFIELD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

1.The mother shall have sole parental responsibility for the child X born in 2020 (“child”), provided that the mother:

(a)Notifies the father of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:

(i)Proposed decision about which schools the child shall attend;

(ii)Proposed decision about elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting the child;

(b)Ensure that such notification is given to the father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency; and

(c)Take into consideration any views expressed by the father in respect of such proposed decisions.

2.The child shall live with the mother.

3.The child shall spend time with the father:

(a)Commencing on the first Saturday after these orders and each alternate Saturday thereafter, from 9am until 6pm;

(b)Each Wednesday from after daycare, school, or from 3:30pm (if a non-school/daycare attendance day) until 6pm; and

(c)At such other times as agreed to by the parents in writing.

4.The child shall have videocall communications with her father as agreed between the parents in writing and…

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McDowell & Redfield [2023] FedCFamC2F 1307
Case
[2023] FedCFamC2F 1307
Decision Date

CaseChat Overview and Summary

McDowell & Redfield involved a dispute between Ms McDowell and Mr Redfield over the parenting arrangements for their child, X. The case was heard in the Federal Circuit and Family Court of Australia. Both parents had a history of drug use, criminal convictions, and mental health issues. There were also allegations of family violence, and it was alleged that the father had been the subject of a shooting. The mother had been previously convicted of driving under the influence of alcohol and drugs. The court was required to determine the appropriate parenting arrangements for the child, including the allocation of parental responsibility and the child's living arrangements, as well as the conditions to be imposed on the parents in relation to the exercise of their parental responsibilities.

The court considered the best interests of the child as the paramount consideration. It found that the mother should have sole parental responsibility for the child, subject to certain conditions. The court ordered that the child would live with the mother and have regular contact with the father, including overnight stays and videocall communication. The court also imposed a range of conditions on the parents to ensure the safety and wellbeing of the child, including restrictions on alcohol and drug use, and a requirement for the mother to notify the father of any proposed decisions relating to the child's long-term care and welfare. The court also ordered that the parents communicate with each other via text message and email only, and that they keep each other informed of their contact details and any changes to those details.

The court made detailed orders to ensure the safety and wellbeing of the child. It ordered that the child would live with the mother and have regular contact with the father. The court imposed a range of conditions on the parents to ensure that the child was not exposed to violence, alcohol or drugs, and that the parents communicated with each other in a respectful and responsible manner. The court also ordered that the parents keep each other informed of their contact details and any changes to those details, and that they make arrangements at the child's daycare, preschool or school to ensure that both parents are able to obtain information and documents relating to the child's education and wellbeing.

The court's orders reflect a careful consideration of the child's best interests, taking into account the complex and difficult circumstances of the case. The court has imposed conditions on the parents to ensure the safety and wellbeing of the child, and has allocated parental responsibility in a way that reflects the parents' abilities to care for the child. The orders provide a clear framework for the parents to follow in exercising their parental responsibilities, and provide a degree of certainty and stability for the child.

Orders

Orders of the court

PAC 4725 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MCDOWELL

Applicant

AND:

MR REDFIELD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

1. The mother shall have sole parental responsibility for the child X born in 2020 (“child”), provided that the mother:

(a) Notifies the father of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:

(i) Proposed decision about which schools the child shall attend;

(ii) Proposed decision about elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting the child;

(b) Ensure that such notification is given to the father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency; and

(c) Take into consideration any views expressed by the father in respect of such proposed decisions.

2. The child shall live with the mother.

3. The child shall spend time with the father:

(a) Commencing on the first Saturday after these orders and each alternate Saturday thereafter, from 9am until 6pm;

(b) Each Wednesday from after daycare, school, or from 3:30pm (if a non-school/daycare attendance day) until 6pm; and

(c) At such other times as agreed to by the parents in writing.

4. The child shall have videocall communications with her father as agreed between the parents in writing and failing agreement from 6pm until 6:30pm each Monday. For the purpose of such communications, the father shall initiate the call to the contact number nominated by the mother and the mother shall ensure the child is available for the communication.

5. The parents shall communicate in relation to parenting issues concerning the child via text message and email only, unless otherwise agreed to between the parents in writing.

6. The parents shall keep one another informed in writing of their mobile phone number and email address and shall advise the other parent within 48 hours of a change in such details.

7. The parents shall make arrangements at the child’s daycare, preschool or school to ensure that both parents are able to obtain the following information and documents at their own expense:

(a) A copy of all school reports and school photo order forms for the child;

(b) Notification for school activities, such activities being those that parents are ordinarily entitled to or invited by the school to attend; and

(c) Notification of parent/teacher nights.

8. The parents shall ensure that the other is advised of the following information in relation to the child:

(a) Any serious medical problems, severe illnesses and/or hospital admissions suffered by the child whilst she is in their care as soon as possible;

(b) Any medication that has been prescribed to the child and the reason for such medication; and

(c) Any treatment that is required to be undertaken for the child.

9. Each of the parents to these proceedings be restrained from:

(a) Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the mother, the father, or any other member of the parent’s respective households;

(b) Denigrating any of the other parent’s or member of the other parent’s families in the presence or hearing of the child and each parent shall do all acts and things reasonably necessary to prevent any other person doing so;

(c) Discussing these proceedings or any issues arising out of these proceeding with the child or permitting any third party to do so;

(d) Making critical or derogatory remarks on social media, in relation to the other parent or referring in any way to the proceedings;

(e) Consuming alcohol in excess of the legal driving limit when they have the child in their care and for the 12 hours prior to the child coming into their care; and

(f) Using illicit substances or prescription medication that they do not have a valid script for when the child is in their care and for the 72 hours prior to the child coming into their care.

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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