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
M & M (1989) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
McDowell & Redfield [2020] FCCA 2670
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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CaseChat Overview and Summary
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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