FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McLeay & McLeay [2024] FedCFamC2F 798
File number(s): MLC 2691 of 2023 Judgment of: JUDGE RILEY Date of judgment: 26 June 2024 Catchwords: FAMILY LAW – parenting – children aged 8 and 6 years old – father failing to comply with court orders – father breaching an interim intervention order – father’s family violence being at the lower end of the spectrum – father being associated with the B Organisation – father accusing court of gender bias – father pretending to transition to being female – father lodging complaints about police, the mother’s solicitor, the independent children’s lawyer, registrars of this court and the psychiatrist, Dr C – father threatening to name and shame people involved in this case in a documentary he plans to make – father sending abusive emails to practitioners involved in this case – father sending text message to his 21 year old daughter saying she is “disgusting” – father telling his 25 year old daughter in a text message that she is an “evil” person – father declining to attend supervised visits with his children – father being in arrears of child support – supervision report showing children had a positive time with their father – the psychiatrist, Dr E, describing the father as venomous and lacking empathy – whether there should be equal or sole parental responsibility – whether the children should spend equal time with their father, no time, or two hours per month supervised – whether orders should be made requiring the annulment of the children’s US citizenship – whether the children’s passports should be retained in the registry Legislation: Evidence Act 1995, s.128
Family Law Act 1975, ss. 4AB(1), 60B, 60CA, 60CC, 65DAAA, 102NA,114S(2)(b)(i), 121.
Family Violence Protection Act 2005 (Vic), s.5(1)
Cases cited: Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-72; [1978] FamCA 84 Division: Division 2 Family Law Number of paragraphs: 374 Date of last submission/s: 30 May 2024 Dates of hearing: 20, 21, 22, 23, 24, 27, 28, 29 and 30 May 2024 Place: Melbourne Counsel for the Applicant: Emma C Jeans Solicitor for the Applicant: J S Law Advocate for the Respondent: In person, except on 30 May 2024 when the respondent did not appear. Solicitor Advocate for the Independent Children’s Lawyer: Eric Myles Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
McLeay & McLeay [2024] FedCFamC2F 798
CORRIGENDUM
JUDGE RILEY:
At paragraph 143, in proposed order 1, insert the words “making major long term decisions in relation to” after the words “sole parental responsibility for”.
At paragraph 143, after proposed order 1, insert the following words:
2.The mother’s sole decision making responsibility for [X] and [Y] include:
(a) education, including preschool, primary, secondary and tertiary;
(b) healthcare, medical and dental issues;
(c) religious observance; and
(d) sporting, cultural and social activities...
At paragraph 144, above proposed order 4, insert the following words:
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CaseChat Overview and Summary
The legal issues before the court included whether sole or equal parental responsibility should be granted to the mother, the appropriate visitation schedule for the children with their father, and whether specific orders should be made regarding the children's passports and US citizenship. The court had to consider the psychiatrist's assessment, the children's best interests, and the father's behaviour, including allegations of gender bias, threats to name and shame individuals involved in the case, and abusive communications.
In delivering the judgment, the court found that the father's conduct, including his failure to comply with court orders, his breaches of an interim intervention order, and his association with an organisation linked to family violence, significantly impacted the children's welfare. The court also noted the father's venomous and lacking empathy behaviour, as described by the psychiatrist. Consequently, the court awarded sole parental responsibility to the mother for major long-term decisions concerning the children, while granting equal shared responsibility for travel-related decisions. The court ordered supervised visitation for the children with their father, with strict protocols to ensure compliance and safety. Additionally, the court directed the father to refrain from contacting the children or their mother and mandated the retention of the children's passports in the court registry.
The final orders included provisions for the mother's sole responsibility over major decisions, supervised visitation, communication restrictions, and safety measures for the children. The court also directed an investigation into potential breaches of confidentiality laws by the father and required the parents to use a communication app for exchanges related to the children, with restrictions on other uses. The children's passports were to remain in the court registry until further order.
Orders
Orders of the court
MLC 2691 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MCLEAY
Applicant
AND:
MR MCLEAY
First Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
26 JUNE 2024
Amended pursuant to r.10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 5 July 2024
THE COURT ORDERS THAT:
1. Except as stated in order 3, the mother have sole parental responsibility for *in relation to major long-term decisions concerning* X, born in 2016, and Y, born in 2018.
2. The mother’s sole parental responsibility for X and Y include power to make decisions for them regarding:
(a) education, including preschool, primary, secondary and tertiary;
(b) healthcare, medical and dental issues;
(c) religious observance; and
(d) sporting, cultural and social activities.
3. The parents have equal shared parental *joint decision making* responsibility in relation to X and Y’s travel and the obtaining of passports for them, subject to any further order of the court.
4. X and Y live with their mother.
THE COURT ORDERS BY CONSENT THAT:
5. The mother be permitted to relocate the residence of X and Y and herself to Melbourne.
THE COURT ORDERS THAT:
6. X and Y spend time with their father for two hours once per calendar month at the D Contact Service at such times and on such dates as are nominated by the service, until the mother, X and Y relocate to Melbourne AND time becomes available at a contact service in Melbourne nominated by the mother.
7. Each parent promptly do all things necessary to ensure that X and Y spend time with their father at D Contact Service or, if the mother, X and Y relocate to Melbourne, at the supervised contact service in Melbourne nominated by the mother.
8. The paternal grandparents be permitted to attend at the sessions with X and Y at the supervised contact service with the father if he so requests.
9. The mother ensure that X and Y attend for all sessions arranged by the supervised contact service as directed, save in the case of emergency or ill-health.
10. If the mother cancels a session because of emergency, she provide to the father and the supervised contact service, within 72 hours of the scheduled commencement time of the session, a statutory declaration giving full particulars of the emergency and a full explanation of why X and Y were unable to attend the supervised contact session.
11. If the mother cancels a session for reasons of ill-health, she provide to the father and the supervised contact service, within 72 hours of the scheduled commencement time of the session, a fully detailed medical certificate specifying the exact diagnosis and the reasons for X and/or Y not attending the session.
12. If the mother cancels a supervised contact centre session for any reason, make-up time be arranged as soon as possible.
13. Seventy-two hours prior to the scheduled commencement time of each session at the supervised contact centre, the father confirm with the mother via a communication app and in writing with the supervised contact centre that he will attend the session.
14. If the father fails to confirm as required by the previous order, the session be cancelled.
15. If the father cancels a session, or if a session is cancelled due to the father not confirming 72 hours prior to the commencement of the session that he will attend, there be no make-up time.
16. If the sessions with the father are cancelled for a period of three continuous months, whether because he does not confirm 72 hours prior to the start of a session that he will attend, or because he cancels himself, all future sessions with the father be cancelled.
17. If X and Y or either of them express a reasonable wish to send a card, letter or gift to their father, their mother do all acts and things reasonably necessary to facilitate that wish.
THE COURT ORDERS BY CONSENT THAT:
18. Each of the parents be at liberty to provide a copy of these orders to X and Y’s school(s) and treating medical/mental health providers.
19. Each parent be restrained from:
(a) discussing these proceedings or any of the allegations made herein with X and Y or either of them; and
(b) speaking about the other parent or their family in a negative way with or in the presence or hearing of X and Y or either of them or allowing any other person to do so.
20. Without admitting the necessity for the same, the parents and/or their servants and agents be restrained from referring to any person other than the respondent as “Dad”, “Daddy”, “Father” or a similar name in the presence or hearing of X and Y or either of them or allowing them to do so.
THE COURT ORDERS THAT:
21. The mother and her servants and agents be restrained from referring to Mr F as “[Dad]” or allowing X and Y or any other person in their hearing to do so.
22. The mother be permitted to enrol X and Y in a new school or schools without the express written consent of their father and be at liberty to provide a copy of these orders to any school to support such an enrolment.
23. The mother:
(a) send to the father copies of school reports, notices, and other publications within 72 hours of her receiving them with the name(s) of X and Y’s school(s) and the schools’ contact details and X and Y’s residential address being redacted; and
(b) keep the father informed of X and Y’s significant school and extracurricular activities and milestones, without providing any details of where the activities are undertaken.
24. The mother send to the father within 72 hours of receiving them copies of any reports provided by a medical or mental health care practitioner in relation to X and Y or either of them, with the address and other contact details of the mother, X and Y to be redacted from any report prior to it being given to the father.
25. The mother provide to the father within 72 hours details of any medical emergency affecting X or Y or either of them.
26. The mother be permitted to provide a copy of the family reports dated 27 February 2024 and 1 May 2024 to any doctor and/or allied health professional that may be engaged with the mother, X and Y, or any of them from time to time.
27. The mother and father each download the communication app for the purpose of the exchange of any information in relation to X and Y as required by these orders.
28. Each parent be restrained from using the communication app for any communication not expressly required by these orders.
29. The mother and father by themselves and their servants and agents be restrained from:
(a) being under the influence of or consuming alcohol to reach a blood alcohol level above 0.05% while X and Y or either of them are in their care or while they are spending time with X and Y or either of them;
(b) using or being affected by illicit drugs at any time while X and Y or either of them are in their care or while spending time with X and Y or either of them (including prescription medication for which they do not hold a valid prescription);
(c) driving with X and Y or either of them while under the influence of alcohol, illicit substances or any substance which may cause them to fail a road side drug test (including THC/CBD oil);
(d) physically disciplining X and Y or either of them, or allowing any third party to do so;
(e) committing family violence against X and Y or either of them or allowing any third party to do so;
(f) showing to, or leaving accessible to X and Y or either of them any document connected with these proceedings; and
(g) showing to, or leaving accessible to X and Y or either of them, messages, emails or other written communications between the parents.
30. The father be restrained from:
(a) knowingly attending on, or being within 200 metres of, any residence or school at which the mother, X and Y or any of them may reside or attend; and
(b) contacting or attempting to contact the mother, X and Y or any of them by any direct or indirect means, save and except as provided for in these orders.
31. Each of the Australian and United States of America passports for X and Y remain in the registry of the Federal Circuit and Family Court of Australia at Melbourne until further order of this court or with the written consent of each party.
32. The mother be permitted to provide a copy of these orders and the reasons for these orders to State courts for the purposes of proceedings in State courts.
33. Upon meeting with the children and explaining these orders, the appointment of the independent children’s lawyer be discharged.
THE COURT DIRECTS THAT:
34. A registrar of this court refer this matter to the Australian Federal Police for investigation into whether the father has breached s.121 of the Family Law Act 1975 by publishing on social media an account of proceedings under the Family Law Act 1975 that identified a party to the proceedings and a person who is related to a party to the proceedings.
35. The registrar provide to the Australian Federal Police a copy of these orders and the reasons for judgment, and any documents from the court file that the Australian Federal Police might seek for the purposes of conducting its investigation, including affidavits and transcripts of the hearing.
THE COURT ORDERS THAT:
36. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
B. Section 114Q of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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