FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCGOVERN & DONOGHUE | [2017] FCCA 1511 |
| Catchwords: FAMILY LAW – Parenting – alienation or realistic estrangement due to family violence and abuse – hybrid or pure alienation – changing residence. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA(1), 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(4), 68L, 68Q, 69ZW |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 Cobb & Cobb (No.2) [2015] FCCA 2766 Lloyd v Lloyd and Child Representative (2000) FLC 93-045 Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] HCA 4 |
| Applicant: | MR MCGOVERN |
| Respondent: | MS DONOGHUE |
| File Number: | MLC 5058 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 21-23 June 2017 |
| Date of Last Submission: | 23 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hutchings |
| Solicitors for the Applicant: | Counsel Family Lawyers |
| The Respondent: | Self-Represented |
| Counsel for the Independent Children's Lawyer: | Ms Treyvaud |
| Solicitors for the Independent Children's Lawyer: | Schetzer Constantinou |
ORDERS
The father have sole parental responsibility for the child X born (omitted) 2005 (“the child”).
In making any significant long term parental decision, the father use his best endeavours to consult with the mother by email, or through the appointed family therapist as appropriate.
The father collect the child from childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria after the Independent Children’s Lawyer has explained the orders.
The child live with the father.
The child spend time and communicate with the mother as follows:
(a)For a period of 3 months, there be no time or communication;
then:
(b)By telephone each Wednesday and Sunday, with the father to facilitate the call between 6:30pm and 7:00pm and the father be at liberty to monitor these calls;
then after 4 months from the enactment of (a.):
(c)For a period of 3 months, each alternate weekend at and supervised by Bethany Children Contact Centre in (omitted) noting that said Centre may nominate the time and duration of time but it is expected to be approximately 2 hours each visit;
then:
(d)For a period of 3 months, each alternate weekend for a period of 3 hours with changeover to occur at Bethany Children Contact Centre in (omitted);
then:
(e)Each alternate weekend from 7:30pm Friday until 6:00pm Sunday;
(f)On the commencement of paragraph 5(e) herein, for half of all school holiday periods as agreed, but failing agreement, the first half in odd years and the second half in even years, with the child to always be in the care of the father no…
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- McGovern and Donoghue [2017] FCCA 1511
- Case
- [2017] FCCA 1511
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary residence of the child, the extent of parental responsibility, and the specific schedule for the child's time with each parent, including communication, supervised contact, and holiday arrangements. Further issues included the facilitation of changeovers, the exchange of information regarding the child's health and education, and the involvement of professionals such as family therapists and mental health services. The court also addressed injunctions to prevent denigration and the disclosure of court materials to the children, and considered the potential invalidity of any inconsistent family violence orders.
Judge Harland ordered that the father have sole parental responsibility for the child, with the child to live with the father. The mother's time with the child was to be phased in over several stages, commencing with no contact for three months, followed by telephone contact, then supervised contact, and eventually unsupervised time on alternate weekends and during school holidays. The father was directed to consult with the mother on significant long-term decisions and to facilitate the child's engagement with mental health services and family therapy. The mother was encouraged to seek professional support to adjust to the orders.
Orders
Orders of the court
1.
The father have sole parental responsibility for the child X born (omitted) 2005 (“the child”).
2.
In making any significant long term parental decision, the father use his best endeavours to consult with the mother by email, or through the appointed family therapist as appropriate.
3.
The father collect the child from childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria after the Independent Children’s Lawyer has explained the orders.
4.
The child live with the father.
5.
The child spend time and communicate with the mother as follows:
(a) For a period of 3 months, there be no time or communication;
then:
(b) By telephone each Wednesday and Sunday, with the father to facilitate the call between 6:30pm and 7:00pm and the father be at liberty to monitor these calls;
then after 4 months from the enactment of (a.):
(c) For a period of 3 months, each alternate weekend at and supervised by Bethany Children Contact Centre in (omitted) noting that said Centre may nominate the time and duration of time but it is expected to be approximately 2 hours each visit;
then:
(d) For a period of 3 months, each alternate weekend for a period of 3 hours with changeover to occur at Bethany Children Contact Centre in (omitted);
then:
(e) Each alternate weekend from 7:30pm Friday until 6:00pm Sunday;
(f) On the commencement of paragraph 5(e) herein, for half of all school holiday periods as agreed, but failing agreement, the first half in odd years and the second half in even years, with the child to always be in the care of the father no later than 72 hours prior to the commencement of each school term;
(g) Each Mother’s Day weekend, commencing in 2018, from 7:30pm Friday until 6:00pm Sunday, and in the event this would not otherwise be a spend time weekend, the following weekend be suspended;
(h) Commencing 2018, from 9:00pm on 24 December until 7:00pm on 26 December every year;
(i) As otherwise agreed in writing.
6.
The child’s time with the mother is suspended:
(a) Each Father’s Day weekend;
(b) From 6:00pm on 22 December until 9:00pm on 24 December each year.
7.
All changeovers be facilitated by the father, his partner Ms I, or his nominee, delivering the child to the mother’s residence at the commencement of time and the mother or her nominee delivers the child to the father’s nominated residence at the conclusion of time; save for the changeovers over Christmas, whereby the mother or nominee collects the child on 24 December and the father or his nominee collects the child on 26 December, save as otherwise agreed in writing.
8.
The parties keep the other informed in the event the child suffers any serious injury or illness, such notifications to include the details of the treating health professional and location of the child.
9.
The mother be at liberty to attend all parent teacher interviews and to liaise directly with the child’s school and treating health professionals provided that during any period of no time, she not come into contact with the child.
10.
The mother be restrained by injunction from having the child attend upon psychologists, psychiatrists or any other health professional or counsellor when the child is in her care, save in an emergency with prior written agreement of the father.
11.
The father as soon as reasonably practicable do the following;
(a) Arrange for a referral and do all things to engage Child & Adolescent Mental Health Service (“CAMHS”) in a private capacity to assess, monitor and treat the child for any Autism Spectrum Disorder (“ASD”), if applicable,
(b) Arrange for a family therapist agreed by the Independent Children’s Lawyer to engage with the child, himself, his partner, the mother and the child’s siblings (at the discretion of said therapist) to monitor and assist X and the family with ensuring the implementation of these orders and X’s new living arrangements;
at the father’s expense.
12.
The father be at liberty to provide all family reports and any written judgment to the child’s treating health professionals and any counsellor involved with the child and the child’s school, be provided with a copy of these Orders.
13.
The Independent Children’s Lawyer be discharged in 12 months’ time.
14.
The parties forthwith do all acts and things required to avail themselves and the child with Bethany Family Contact Service in (omitted) for the purpose of time pursuant to subparagraph 4(c) herein.
15.
The child’s siblings be at liberty to attend the final 2 supervised contact visits.
16.
The mother forthwith notify the father in the event X seeks to make any contact with her, or to any of his siblings, outside of the times stipulated in orders 4(a) to (i).
17.
The parties be restrained by injunction from denigrating the other, or any member of the other household or family in the presence or hearing of the child.
18.
The parties be at liberty to correspond by email as to all issues relevant to the child.
19.
Each party be restrained by injunction from showing any material used or filed, or proposed for the proceedings to any of their children, or allowing any person to do so, save these orders.
20.
That mother is encouraged to engage with a psychologist, psychiatrist or experienced family therapist to assist her with adjusting to these orders and to alter her attitude toward the father and if she does so she shall provide with copies of this Judgment and the Family Reports in this matter to psychologist or psychiatrist.
21.
The mother notify the Independent Children’s Lawyer as to any professional she engages pursuant to paragraph 19 herein, and the Independent Children’s Lawyer ensure that the relevant documents have been provided to said professional and be at liberty to monitor attendance by the mother.
22.
Pursuant to Section 68Q of the Family Law Act 1975, the extent to which this order is inconsistent with any family violence order between the parties, the family violence order is invalid.
23.
Parties have liberty to apply on short notice.
DIRECTIONS
24.
The Registrar provide a copy of these orders to the Registrar of the Magistrates’ Court of Victoria (Warrnambool Registry).
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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