FAMILY COURT OF AUSTRALIA
| MINSHALL & CLAYTON AND ANOR | [2019] FamCA 388 |
| FAMILY LAW – CHILDREN – where the eldest child has a different father to the two youngest children – where both fathers are respondents in these proceedings – where orders are made for the children to live with their respective biological fathers – where a change of residence is necessary to achieve the physical and emotional safety of the children – where the mother shall spend no time with the children for a period before progressing to supervised time followed by unsupervised weekend time – where the mother has had significant involvement with the Department of Family and Community Services and the M Centre Program – where the parties have been involved in previous proceedings in relation to the children – where proceedings were recommenced by one of the respondent fathers due to the mother unilaterally ceasing time – where orders are made that are inconsistent with an Apprehended Domestic Violence Order – where the father pleaded guilty to assaulting one of the children – where the question is whether a father who pleaded guilty to assaulting the child can have the child living with him – where the father denies assaulting the child and stated he pleaded guilty to avoid the child giving evidence – where there is no history of the father violently punishing the children – where the children are violent and uncontained in the mother’s household – where the children have been chronically emotionally maltreated in the mother’s household – where the welfare of the children are at stake – where the children have been exposed to abuse and family violence in the mother’s household – where the children have all suffered psychological harm in the mother’s household – where the mother has an impaired capacity to meet the needs of the children - where both fathers present as loving and concerned parents – where the primary focus of this matter is safety. FAMILY LAW – CHILDREN – Parental Responsibility – where the fathers will each have sole parental responsibility for their respective biological child/children – where previous final orders provided that the mother have equal shared parental responsibility with the respective fathers – where the mother has not acted in accordance with this order and has not consulted or included either of the fathers in long term decisions made in relation to the children – where the diagnosis and medications of each of the children needs to be reviewed – where the parent with whom the child lives should have sole parental responsibility. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Minshall |
| FIRST RESPONDENT: | Mr Clayton |
| SECOND RESPONDENT: | Mr Wilkie |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Blundell & Associates |
| FILE NUMBER: | NCC | 26 | of | 2014 |
| DATE DELIVERED: | 19 June 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 7 - 10 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Boyd |
| SOLICITOR FOR THE APPLICANT: | Virginia Taylor Partners |
| COUNSEL FOR THE FIRST… |
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- Case
- [2019] FamCA 388
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the legal issues surrounding the discharge of all prior parenting orders and the establishment of new arrangements. This included deciding who would have sole parental responsibility for each child, where each child would live, and the extent of time the mother would spend with the children. A significant legal issue arose concerning an inconsistency between a new parenting order and an existing family violence order protecting Y from Mr Clayton, requiring the court to consider the application of section 68P(2) of the *Family Law Act 1975*.
Cleary J reasoned that the existing parenting orders were no longer appropriate and ordered their discharge. The court then made orders granting sole parental responsibility and primary residence to each child's respective father, Mr Wilkie for X, and Mr Clayton for Y and Z. The court noted the specific provisions of section 68P(2) of the *Family Law Act 1975* in relation to Y, clarifying that while the family violence order protected Y from certain behaviours by Mr Clayton, it did not prevent Mr Clayton from caring for Y. The court also mandated paediatric assessments for X and child psychiatric assessments for Y and Z, with specific directions for information sharing between parents and medical professionals. The mother's time with the children was significantly restricted initially, with a gradual increase in contact over time, including provisions for X to spend time with Y and Z. The court also directed the parents to ensure their names were registered as fathers on the children's birth certificates.
Orders
Orders of the court
1.
That all prior parenting orders made in the Federal Circuit Court and in this Court in relation to:
· X born … 2009 (“X”);
· Y born … 2011 (“Y”);
· Z born … 2014 (“Z”);
together known as “the children”, be discharged.
X
2.
That Mr Wilkie (the father of X) have sole parental responsibility for X.
3.
That X live with Mr Wilkie.
Assessment of X
4.
That Mr Wilkie arrange as soon as practicable a paediatric assessment of X to assess whether her current diagnosis continues to remain relevant and whether or not ongoing medication is required.
5.
That Mr Wilkie has leave to provide to the paediatrician who assesses X:
5.1 A copy of the assessment of Ms B, clinical psychologist, L Centre dated 15 January 2018;[1]
5.2 A copy of the Family Report dated 17 September 2018;
5.3 A copy of these orders and reasons for judgment.
6.
That Mr Wilkie shall:
6.1. Advise the mother of the date and time of the paediatric assessment for X;
6.2. Provide the name, address and contact details of the mother to the proposed paediatrician;
6.3. Authorise the paediatrician to provide to the mother copies of any reports generated in relation to X.
Y and Z
7.
That Mr Clayton have sole parental responsibility for Y and Z.
8.
That Y and Z live with Mr Clayton NOTING pursuant to Section 68P(2) of the Family Law Act 1975 that this order as it relates to Y is inconsistent with an existing family violence order for his protection from the father.
9.
That Mr Clayton arrange as soon as practical an assessment by a child psychiatrist of Y and Z to assess whether the current diagnosis for each of the children continues to remain relevant and whether or not ongoing medication is required.
10.
That Mr Clayton has leave to provide to the child psychiatrist who assesses Y and Z:
10.1. A copy of the APLAS Report for Z dated 20 March 2018;[2]
10.2. Copy of Summary Psychology Report for Y dated 22 November 2015;[3]
10.3. Statement of Dr C dated 3 May 2017 in respect of Y;[4]
10.4. A copy of the Family Report dated 17 September 2018;
10.5. A copy of these orders and reasons for judgment.
11.
That Mr Clayton shall:
11.1. Advise the mother of the date and time of the child psychiatrist appointments for Y and Z;
11.2. Provide the name, address and contact details of the mother to the proposed child psychiatrist;
11.3. Authorise the child psychiatrist to provide to the mother copies of any reports generated in relation to Y and Z.
Time and communication
12.
That the children spend time with the mother as follows:
12.1. For a period of twelve weeks there shall be no time and communication between the children and the mother;
12.2. Thereafter, and until the commencement of the school year in 2020, on each alternate weekend in a contact centre for two hours;
12.3. Commencing from the first weekend of the school year in 2020:
For X
12.3.1. On Saturday from 10.00 am to 5.00 pm on one occasion in each calendar month;
12.3.2. X spend time with the mother on one weekend in four from 9.00 am Saturday to 5.00 pm Sunday to coincide with Y and Z spending time with the mother;
For Y and Z
12.3.3. That Y and Z spend each alternate weekend with the mother (to coincide with X spending time with the mother) from Friday after school until before school Monday, with the mother to collect the children from and return the children to school;
12.3.4. That X spend time with Y and Z in the home of Mr Clayton as agreed between the two fathers but in any event for not less than one occasion per calendar month.
Order made in this Court inconsistent with a Family Violence (Apprehended Domestic Violence) Order made in the Local Court - Section 68P(2)(iii)
13.
Order 8 herein is inconsistent with a current family violence order which is annexure “A” to these orders made in the Local Court on 26 July 2017 and varied on 7 September 2017. The order was made for a period of five years and expires on 25 July 2022.
14.
Orders 7 and 8 herein provides for the child Y to live with Mr Clayton (his father) and for Mr Clayton to have sole parental responsibility for Y.
15.
The Independent Children’s Lawyer shall:
15.1. Pursuant to s 68P(2)(iii) of the Family Law Act 1975 explain to Y and to the father that the family violence order for the protection of Y continues to provide that Mr Clayton must not:
(i) Assault or threaten him;
(ii) Stalk, harass or intimidate him; and
(iii) Intentionally or recklessly destroy or damage any property that belongs to, or is in the possession of Y; but does not restrain the father from approaching and contacting and caring for Y.
16.
That the mother shall forthwith comply with the Order 1.9 (c) made by consent on 13 October 2016 and repeated here as follows:
16.1. Notify the registrar of Births Death and Marriages that:
1. Mr Wilkie is the father of X born … 2009;
2. Mr Clayton is the father of Z born … 2014;
16.2. And request that a birth certificate issue which includes the name of the father in respect of each child.
17.
That in the event that a party fails to execute an instrument as directed by these orders a registrar of this Court pursuant to Section 106A of the Family Law Act 1975 may execute that instrument in the name of the person required to do so, and to do all acts and things necessary to give validity and operation to the instrument.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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