FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Melton & Domara (No 2) [2023] FedCFamC2F 1339
File number(s): ADC 1244 of 2019 Judgment of: JUDGE DICKSON Date of judgment: 20 October 2023 Catchwords: FAMILY LAW – PARENTING – Children aged nine and six years – Previous final orders made by consent in July 2020 – Allegations and incidents of family violence that served to re-open the final orders application – Where the father seeks sole parental responsibility – Where the mother seeks week about time spending – Consideration of best interests – Consideration of meaningful relationship – Orders for children to spend time with the mother on a gradual and increasing basis – Orders for equal shared parental responsibility – Best interests. Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62G, 65DAA, 65DAC.
Cases cited: Godfrey & Sanders [2007] FamCA 102,
Goode & Goode (2006) FLC 93–286,
Hall & Hall (1979) FLC 90-713,
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378,
Loddington & Derringford (No 2) [2008] FamCA 925,
Mazorski & Albright (2007) 37 Fam LR 518,
Rice v Asplund [1978] FamCA 84,
Sigley v Evor [2011] FamCAFC 22,
Whisprun Pty Ltd v Dixon [2003] HCA 48.Division: Division 2 Family Law Number of paragraphs: 206 Date of hearing: 28 and 29 August 2023, and 13 October 2023 Place: Adelaide Counsel for the Applicant: Ms James Solicitor for the Applicant: Starkie Family Law Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Daniel John Lawyers Counsel for the Independent Children's Lawyer: Ms Dichiera Solicitor for the Independent Children's Lawyer: Awkar & Co ORDERS
ADC 1244 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MELTON
Applicant
AND: MS DOMARA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The parties have equal shared parental responsibility for the children X born in 2014 and Y born in 2017 (‘the children’).
3.The children live with the father.
4.The children spend time with the mother as follows:
(a)During school terms:
(i)On each alternate weekend from the conclusion of school Friday (or 3:00pm if a non-school day) to the commencement of school Monday (or 9:00am if a non-school day or 9:00am Tuesday in the event of a public holiday Monday);
(ii)For the remainder of 2023 and for Term 1 2024, on each Wednesday from the conclusion of school (or 3:00pm if a non-school day) to 7:00pm;
(iii)As and from the commencement of Term 2 2024, on each alternate Wednesday from the conclusion of school (or 3:00pm if a non-school day) to commencement of school on Thursday (or 9:00am if a non-school day); and
(iv)As and from the commencement of Term 4 2024, on each Wednesday from the conclusion of school (or…
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CaseChat Overview and Summary
The court was required to decide several legal issues, including whether the allegations of family violence were substantiated, the weight to be given to the Independent Children's Lawyer's recommendations, and whether the proposed arrangements would facilitate a meaningful relationship between the mother and the children. The court also had to determine whether the arrangements would promote the children's best interests, considering their ages and the need for stability and continuity in their lives.
Judge Dickson found that the allegations of family violence had not been substantiated to the requisite standard. The court considered the children's best interests, finding that a gradual and increasing time-sharing arrangement with the mother was in their best interests. The court acknowledged the importance of a meaningful relationship between the mother and the children and concluded that the proposed arrangements would facilitate this relationship. The court also noted the need for stability and continuity in the children's lives, given their young ages. The final orders provided for equal shared parental responsibility, with the children spending increasing time with the mother on a gradual basis, and included various restrictions and obligations to ensure the safety and well-being of the children.
Orders
Orders of the court
ADC 1244 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MELTON
Applicant
AND:
MS DOMARA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1. All previous parenting orders are hereby discharged.
2. The parties have equal shared parental responsibility for the children X born in 2014 and Y born in 2017 (‘the children’).
3. The children live with the father.
4. The children spend time with the mother as follows:
(a) During school terms:
(i) On each alternate weekend from the conclusion of school Friday (or 3:00pm if a non-school day) to the commencement of school Monday (or 9:00am if a non-school day or 9:00am Tuesday in the event of a public holiday Monday);
(ii) For the remainder of 2023 and for Term 1 2024, on each Wednesday from the conclusion of school (or 3:00pm if a non-school day) to 7:00pm;
(iii) As and from the commencement of Term 2 2024, on each alternate Wednesday from the conclusion of school (or 3:00pm if a non-school day) to commencement of school on Thursday (or 9:00am if a non-school day); and
(iv) As and from the commencement of Term 4 2024, on each Wednesday from the conclusion of school (or 3:00pm if a non-school day) to commencement of school on Thursday (or 9:00am if a non-school day);
(b) For one half of the short term school holidays at times to be agreed between the parties via the AppClose application or in default of agreement for the half of the school holidays coinciding with the cycle referred to in paragraph 4(a)(i) herein;
(c) During the Christmas school holidays in each year on a week about basis with the children to spend the first week of such holidays with the father (and each alternate week thereafter) and the children to spend the second week with the mother (and each alternate week thereafter);
(d) On the children’s birthdays at times to be agreed between the parties (or in default of agreement for a period of three (3) hours at times to be nominated by the party who does not have the care of the children) via the AppClose application;
(e) On Mother’s Day from 10:00am to 5:00pm, and that the mother’s time with the children is to be suspended from 10:00am to 5:00pm on Father’s Day;
(f) At Christmas in each year from 3:00pm Christmas Day to 3:00pm Boxing Day, with the children to be in the care of the father from 3:00pm Christmas Eve to 3:00pm Christmas Day each year; and
(g) At such other times as agreed between the parties in writing via the AppClose application.
5. All handovers that do not take place at the said children’s school occur at the mother’s residence between the mother and either the paternal grandmother or Ms B and with the father only able to participate personally in handovers if the mother’s prior written consent has first been obtained.
6. The father be restrained and an injunction is granted restraining him from entering the foyer of the mother’s apartment building, unless the mother’s prior written consent has first been obtained.
7. The parties be restrained and injunctions be granted restraining each of them from enrolling the children in any further extracurricular or sporting activity which will take place whilst the children are in the respective care of either party without the other party’s prior written consent having first been obtained.
8. That each of the parties are at liberty to travel interstate with the children during school holidays provided that each party provide:
(a) a full itinerary of the travel, address and contact telephone details; and
(b) no less than fourteen (14) days written notice of such intended interstate travel.
9. The appointment of the Independent Children’s Lawyer be discharged.
10. All extant applications be dismissed.
AND IT IS ORDERED BY CONSENT THAT:
11. The children spend time with the mother as follows:
(a) At Eid at times and days as agreed between the parties via the AppClose application;
(b) At such other times as agreed between the parties via the AppClose application.
12. Notwithstanding any other order the parties shall spend time with the children as follows:
(a) For Easter:
(i) With the father in each year from 3:00pm (or the conclusion of school) Easter Thursday to 3:00pm Easter Sunday; and
(ii) With the mother in each year from 3:00pm Easter Sunday to 3:00pm Easter Tuesday (or the commencement of school);
(b) For New Years:
(i) With the father in 2023 and each odd year thereafter from 1:00pm on New Year’s Eve until 1:00pm on New Year’s Day; and
(ii) With the mother in 2024 and each even year thereafter from 1:00pm New Year’s Eve until 1:00pm New Year’s Day.
13. The parties communicate with each other with respect to issues relating to the children via the AppClose application.
14. The parties keep each other informed as to their current telephone and email addresses at all times and advise the other of any change within forty-eight (48) hours of such change.
15. The parties be at liberty to attend at the children’s school events, including but not limited to, activities such as school concerts, school sports days, parent/teacher interviews and the like.
16. These orders be sufficient authority for any school or health professional attended upon by the children to provide to the parties any information or reports pertinent to the children’s progress and development.
17. The parties advise the other of any medical emergency regarding the children as soon as practicable and each be at liberty to speak with any medical practitioner or allied health professional regarding the children.
18. Without admission the parties be restrained and injunctions be granted restraining each of them from:
(a) Physically disciplining either child or allowing any other person to do so;
(b) Denigrating, harassing, intimidating or assaulting the other party, their partner or family or allowing any other person to do so;
(c) Attending at the other party’s place of residence without their prior written consent having first been obtained; and
(d) Discussing these proceedings in the presence or hearing of the children or allowing any other person to do so.
19. The parties be restrained and an injunction be granted restraining each of them and/or their servants and agents from removing or attempting to remove or causing or permitting the removal of X born in 2014 and Y born in 2017 from the Commonwealth of Australia unless otherwise agreed in writing.
20. The father do forthwith do all things and sign all documents necessary to list the mother as an enrolling parent at C School.
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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