FEDERAL CIRCUIT COURT OF AUSTRALIA
| NASLAND & SCHUSTER | [2019] FCCA 2 |
| Catchwords: FAMILY LAW – Parenting – allegations of unacceptable risk of abuse. |
| Legislation: Evidence Act 1995 (Cth) s.140 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV |
| Cases cited: Chapman & Palmer [1978] FamCA 86 |
| Applicant: | MR NASLAND |
| Respondent: | MS SCHUSTER |
| File Number: | WOC 1033 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 10 October 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 18 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Applebaum |
| Solicitors for the Applicant: | Nikolovski Lawyers |
| Counsel for the Respondent: | Mr Lawrence |
| Solicitors for the Respondent: | Kells The Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | DGB Lawyers |
ORDERS
Parental Responsibility
The parents shall have equal shared parental responsibility for [X] born … 2012 (hereinafter referred to as "the Child").
Time
The Child shall live with the Mother.
The Father shall spend the following time with the Child during NSW school terms:
(a)In week 1:
(i)From the conclusion of school or 3:00pm Thursday until the commencement of school or 9:00am on the following Monday.
(b)In week 2:
(i)From the conclusion of school or 3:00pm Thursday until the commencement of school or 9:00am on the following Friday.
The Father shall spend the following time with the Child during NSW school holiday periods:
(a)During the NSW Christmas school holiday periods, from 9:00am Saturday until 9:00am on the following Saturday in weeks 1, 3 and 5 of the school holidays, commencing the first Saturday after the last day of term 4.
(b)During the NSW school holiday periods at the end of terms 1, 2 and 3:
(i)from 9:00am on the first Saturday of such periods until 9:00am on the second Saturday of such periods in all odd numbered years; and
(ii)from 9:00am on the second Saturday of such periods until 9:00am on the last Saturday of such periods in all even numbered years.
The Father shall spend the following time with the Child for special occasions:
(a)9:00am Saturday until 5:00pm Sunday on the weekend encompassing Father’s Day;
(b)4:00pm 23 December until 4:00pm 26 December in all odd numbered years;
(c)5:00pm Holy Thursday until 5:00pm Easter Monday in all even numbered years;
(d)3:00pm until 5:30pm on 6 August if such day falls on a school day and the Child is not already in the Father’s care for this time;
(e)9:00am until 2:00pm on 6 August if such day falls on a non-school day and the Child is not already in the Father’s care for this time.
(f)3:00pm until 5:30pm on 23 August if such day falls on a school day and the Child is not already in the Father’s care for…
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- NASLAND & SCHUSTER [2019] FCCA 2
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- [2019] FCCA 2
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders for parental responsibility and the division of time between the parents, particularly in light of the allegations of risk. Key issues included establishing a living arrangement for the child, defining the father's time with the child during school terms and holidays, and addressing special occasions. Furthermore, the court needed to consider communication protocols between the parents and the child, as well as implement specific restraints and supervision requirements to ensure the child's safety.
In its reasoning, the court established equal shared parental responsibility but ordered that the child live with the mother. The father was granted specific periods of time with the child, with detailed provisions for school terms, holidays, and special occasions. Crucially, the court imposed significant restraints and supervision requirements, particularly concerning the father's contact with another individual, [Y], and the mother's contact with [Ms C]. These orders were designed to mitigate any identified risks, including requirements for separate bedrooms and undertakings from supervising adults. The court also made orders regarding communication, international travel, and the child's name.
Orders
Orders of the court
Parental Responsibility
1.
The parents shall have equal shared parental responsibility for [X] born … 2012 (hereinafter referred to as "the Child").
Time
2.
The Child shall live with the Mother.
3.
The Father shall spend the following time with the Child during NSW school terms:
(a) In week 1:
(i) From the conclusion of school or 3:00pm Thursday until the commencement of school or 9:00am on the following Monday.
(b) In week 2:
(i) From the conclusion of school or 3:00pm Thursday until the commencement of school or 9:00am on the following Friday.
4.
The Father shall spend the following time with the Child during NSW school holiday periods:
(a) During the NSW Christmas school holiday periods, from 9:00am Saturday until 9:00am on the following Saturday in weeks 1, 3 and 5 of the school holidays, commencing the first Saturday after the last day of term 4.
(b) During the NSW school holiday periods at the end of terms 1, 2 and 3:
(i) from 9:00am on the first Saturday of such periods until 9:00am on the second Saturday of such periods in all odd numbered years; and
(ii) from 9:00am on the second Saturday of such periods until 9:00am on the last Saturday of such periods in all even numbered years.
5.
The Father shall spend the following time with the Child for special occasions:
(a) 9:00am Saturday until 5:00pm Sunday on the weekend encompassing Father’s Day;
(b) 4:00pm 23 December until 4:00pm 26 December in all odd numbered years;
(c) 5:00pm Holy Thursday until 5:00pm Easter Monday in all even numbered years;
(d) 3:00pm until 5:30pm on 6 August if such day falls on a school day and the Child is not already in the Father’s care for this time;
(e) 9:00am until 2:00pm on 6 August if such day falls on a non-school day and the Child is not already in the Father’s care for this time.
(f) 3:00pm until 5:30pm on 23 August if such day falls on a school day and the Child is not already in the Father’s care for this time;
(g) 9:00am until 7:00pm on 23 August if such day falls on a non-school day and the Child is not already in the Father’s care for this time.
6.
The time the Father is to spend with the Child pursuant to these Orders shall be suspended as follows:
(a) 9:00am Saturday until 5:00pm Sunday on the weekend encompassing Mother’s Day;
(b) 4:00pm 23 December until 4:00pm 26 December in all even numbered years;
(c) 5:00pm Holy Thursday until 5:00pm Easter Monday in all odd numbered years;
(d) 3:00pm until 5:30pm on 6 August if such day falls on a school day and the Child is not already in the Mother’s care for this time;
(e) 2:00 pm until 7:00pm on 6 August if such day falls on a non-school day and the Child is not already in the Mother’s care for this time.
(f) 3:00pm until 5:30pm on 15 January if such day falls on a school day and the Child is not already in the Father’s care for this time;
(g) 9:00am until 7:00pm on 15 January if such day falls on a non-school day and the Child is not already in the Father’s care for this time.
7.
If Easter falls within a NSW school holiday period the Child shall spend time with the Mother and the Father in accordance with the Orders for Easter time herein and these Orders shall supersede the Orders for school holiday time herein so far as the Orders are inconsistent only and the remainder of the school holiday period, after excluding from 5:00 pm Holy Thursday until 5:00 pm Easter Monday, shall be divided so that the Child spends equal time with each parent for the remainder of the school holiday period.
8.
For the purpose of determining which is week 1 and week 2 for Order 4 hereof week 1 shall always coincide with the odd numbered weeks in each NSW school term and week 2 shall always coincide with the even numbered weeks in each NSW school term.
9.
For the purpose of these Orders each NSW school holiday period shall be deemed to:
(a) commence at the conclusion of school on the last day of the school term requiring student attendance; and
(b) conclude at 5:00 pm on the day immediately preceding the first day of the next school term requiring student attendance.
10.
The time the Father shall spend with the Child pursuant to Order 3 hereof shall be suspended for the duration of each NSW school holiday period.
Communication with the Child
11.
Each parent shall facilitate the Child having flexible and liberal communication with the other parent by telephone, Skype, WeChat or any other agreed communication App, with the parent not spending time with the Child at liberty to communicate with the Child between 5:00pm and 7:00pm each Monday, Wednesday and Friday or at any reasonable time at the request of the Child. If the communication is not answered the parent who missed the call is to facilitate the Child returning the call as soon as possible that same day. If and when the Child has his own device, both parties are to enable Wi-Fi so the Child can contact the other parent at his pleasure.
Changeover
12.
Whenever changeover for the Child does not occur at the Child's school changeover for the Child shall occur with the Mother delivering the Child to the Father's residence at the commencement of the Father's time with the Child and with the Father delivering the Child to the Mother's residence at the conclusion of the Father's time with the Child.
Restraints
13.
Until the Child commences Year 7:
(a) The Father or Ms A or Ms B shall supervise any contact between the Child and [Y] ("[Y]") at all times the Child is spending time with the Father pursuant to these Orders and shall be restrained from leaving the Child and [Y] (together) in the care of any other person.
(b) If the Father or Ms A or Ms B observes that [Y], at any time when the Child is present at his home, demonstrates any form of anti-social behaviour, including inappropriate age-based sexualised behaviours or any form of verbal, physical or emotional violence or presents drug or alcohol effected, the Child shall be immediately removed from that environment until a safe environment can be established.
(c) The Father or Ms A or Ms B shall ensure the Child and [Y] maintain separate bedrooms and do not sleep in the same room.
(d) Ms A and Ms B shall only qualify to supervise contact pursuant to Order 15(a) upon the Father filing and serving on the Mother and the Independent Children’s Lawyer, Undertakings to the Court by those persons stating that they have been provided with a sealed copy of these Orders and agree to be bound by these Orders.
(e) The Mother shall supervise any contact between the Child and Ms C ("Ms C") and shall be restrained from leaving the Child and Ms C (together) in the care of any other person.
(f) If the Mother observes that Ms C, at any time when the Child is present at her home, demonstrates any form of anti-social behaviour, including but not limited to any form of violence either verbal, physical or emotional, or presents drug or alcohol effected or has any form of mental health psychosis, the Child shall be immediately removed from that environment until a safe environment can be established.
(g) The Mother shall ensure the Child and Ms C maintain separate bedrooms at the Mother’s residence and not sleep in the same room.
(h) The Mother shall be restrained from allowing Ms C to spend any more than one (1) night per week in the Mother's home while the Child is spending time with the Mother.
(i) The Father shall be restrained from allowing the Child to come into contact at any time or allowing the Child to communicate at any time with the paternal Grandfather Mr D unless the Father is present with the Child.
International Travel
14.
For the purpose of the Child's Passport:
(a) the parents shall do all acts and sign all documents necessary to ensure the Child maintains a valid Australian Passport with the cost of same to be shared equally between the parties;
(b) the Mother shall hold the Child's passport and provide same to the Father not less than twenty-eight (28) days prior to any proposed travel and the Father shall return same to the Mother within seven (7) days of returning to Australia.
(c) should either parent lose the Child's Passport, the cost of a new Passport for the Child shall be the sole expense of the parent who lost the Passport.
15.
Neither parent shall be permitted to travel with the Child overseas without the other parent’s written consent and that consent shall not be unreasonably withheld, except if it interferes with the other parent's time with the Child pursuant to Orders 3-6 hereof.
16.
For the purpose of Orders 14 and 15 hereof, make up time with the Child shall be provided to the non-traveling parent as agreed between the parents and failing agreement between the parents, the make-up time for the Child shall occur in either the fortnight immediately preceding or immediately following the period of international travel for the Child.
17.
Each parent shall provide the other parent with at least three (3) months written notice of any proposed international travel with the Child, including providing the other parent with a copy of airline tickets, a travel itinerary and a contact phone number for where the Child will be staying.
Other Orders
18.
The Child shall hereafter be known as [X] and the Mother shall be at liberty to approach the Registrar of Births, Deaths and Marriages in the State of New South Wales to have such a name recorded on the Child’s birth certificate and that the Mother shall be responsible for any associated fee.
19.
The Father shall sign all documents required to facilitate the Child’s name being recorded as [X] with the Registrar of Births, Deaths and Marriages in the State of New South Wales within seven (7) days of being requested to do so by the Mother.
20.
Should the Child be enrolled and/or registered in any out of school activities, the enrolling parent must advise the other parent of such activity in writing and details of all scheduled times for the relevant activity
21.
Each parent shall be entitled to attend all events involving the Child including but not limited to:
(a) sporting functions;
(b) extra-curricular activities that allow for parental attendance or participation;
(c) school functions and events that allow for parental attendance or participation;
AND the parent who has the Child in their care on the day of such activity will be responsible for the day to day care of the Child at such event including the Child's transportation to and from the event unless otherwise agreed between the parties.
22.
Each parent shall ensure the other parent is kept informed as soon as is reasonably practicable of:
(a) any significant medical problems or illness suffered by the Child;
(b) any medication prescribed for the Child;
(c) any significant social, school or religious functions the Child is to attend;
(d) the parent’s personal email address and telephone contact numbers;
(e) any other significant matter relevant to the welfare of the Child, including, but not limited to, any attendance by police officer(s), ambulance personnel, fire service personnel, and/or Child welfare personnel at the home of a parent.
23.
In the event the Child requires urgent medical treatment the other parent shall be informed by telephone at the earliest possible time.
24.
Without admissions neither parent shall denigrate the other parent, their family or any other person with whom they may live in a bona fide domestic relationship within the presence or hearing of the Child or allow the Child to remain in the presence or hearing of any person who is denigrating either parent, their family or any other person with whom they may be living in a bona fide domestic relationship.
25.
Each parent shall be hereby authorised to receive any information from the Child's school, including but not limited to copies of the Child's school reports along with copies of all school circulars, newsletters, requests for school photographs and invitations to any school activities which parents are invited to attend. If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the Principal of each school attended by the Child to ensure that the school forwards these items to both parents.
26.
Each parent shall be hereby authorised to speak to any of the Child's treating health practitioners/professionals. If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the medical practitioner/professional attended by the Child to ensure that both parents can speak with such person in relation to the Child.
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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