FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAVA & DEMPSEY | [2018] FCCA 4040 |
| Catchwords: FAMILY LAW – Parenting proceedings - future care arrangements – ex tempore reasons – conduct of child-related proceedings – consideration of special needs of the child – historic unilateral retention of child from Mother’s care – mental health issues found not to negatively impact or disadvantage the child – where it is determined there are no risk issues to the child in the care of either parent - need to foster sibling relationships – child’s awareness of ongoing conflict – best interests of the child – benefit of both parents having a meaningful involvement in child’s life – right to know and be cared for by both parents – right to know and be cared for by others of significance to the child – where presumption for equal shared parental responsibility is deemed to apply – weight given to child’s views – where child’s views are deemed not to be without influence. |
| Legislation: Family Law Act 1975 (Cth), ss.60B; 60CA; 61DA; 65DAC; 65F; 69ZN |
| Cases cited: Goode & Goode (2006) FLC 93-286 Other sources: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) |
| Applicant: | MS NAVA |
| Respondent: | MR DEMPSEY |
| File Number: | PAC 2768 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 12 & 13 December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 13 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Loumis |
| Solicitors for the Applicant: | Legal Aid NSW Penrith |
| Counsel for the Respondent: | Ms Murphy |
| Solicitors for the Respondent: | Rosetta Lo Presti |
| Counsel for the Independent Children’s Lawyer: | Mr Maddox |
| Solicitors for the Independent Children’s Lawyer: | Shedden & Associates |
ORDERS
The parents shall, subject to the balance of these orders, have equal shared parental responsibility for their child, X born 2011.
X shall live with his Mother.
X shall spend time with his Father:
(a)Each alternate weekend during school terms from after school Thursday until before school Monday (Tuesday if Monday is a pupil-free day, public holiday, or non-school attendance day) commencing the first Thursday in Term 1 2019 and thereafter recommencing on the first weekend of each school term;
(b)In each alternate week during school terms, from after school Thursday until before school Friday, commencing on the second Thursday of Term 1 2019, and thereafter recommencing on the second Thursday of each school term;
(c)For the second half of each short New South Wales school holiday period (being those following Terms 1, 2 and 3) from 5pm (6pm…
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- NAVA & DEMPSEY [2018] FCCA 4040
- Case
- [2018] FCCA 4040
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of parental responsibility, the primary residence of X, and the specific schedule for X to spend time with each parent. Further issues included the management of X's medical conditions, including consultations with specialists and therapists, and the communication and cooperation between the parents regarding X's healthcare and education. The court also addressed the parents' obligations to refrain from derogatory comments and the consequences of contravening the orders.
Judge Harman ordered that the parents have equal shared parental responsibility for X, with X to live with his Mother. A detailed schedule was set out for X to spend time with his Father, encompassing alternate weekends, specific weekdays during school terms, and significant portions of school holidays, including Christmas and Father's Day. The orders also stipulated specific times for X to spend with his Mother on Mother's Day and during Christmas in odd-numbered years, and for both parents to have time with X on his birthday. Provisions were made for telephone contact between X and the non-resident parent, and for the method of changeovers. The court also mandated that both parents consult with each other and cooperate regarding X's medical treatment, including consultations with paediatricians, psychologists, and general practitioners, and to follow all recommendations for his diagnoses of ASD and ADT. They were also ordered to cooperate in making claims for assistance under the National Disability Insurance Scheme and to ensure their details were recorded at X's school for communication and involvement. The court further ordered that neither parent make derogatory comments about the other in X's presence and that they remove X from such situations. The Independent Children's Lawyer was discharged with thanks.
Orders
Orders of the court
1.
The parents shall, subject to the balance of these orders, have equal shared parental responsibility for their child, X born 2011.
2.
X shall live with his Mother.
3.
X shall spend time with his Father:
(a) Each alternate weekend during school terms from after school Thursday until before school Monday (Tuesday if Monday is a pupil-free day, public holiday, or non-school attendance day) commencing the first Thursday in Term 1 2019 and thereafter recommencing on the first weekend of each school term;
(b) In each alternate week during school terms, from after school Thursday until before school Friday, commencing on the second Thursday of Term 1 2019, and thereafter recommencing on the second Thursday of each school term;
(c) For the second half of each short New South Wales school holiday period (being those following Terms 1, 2 and 3) from 5pm (6pm during daylight savings) on the middle Saturday of the school holiday period, until 5pm (6pm during daylight savings) on the last Sunday of the holiday period.
(d) For one half of the Christmas school holiday period in each year, alternating between the second half in 2018-19 and each alternate year thereafter, and the first half in 2019-20 and each alternate year thereafter, and with respect to those holidays:
(i) The first half of the school holidays shall commence 10am on the day after the last day of school attendance Term 4 and concludes 6pm 9 January; and
(ii) The second half of the holiday period shall commence 6pm 9 January and concludes 6pm on the Sunday before the first day of school attendance Term 1.
(e) For the Father’s Day weekend in each year from the conclusion of school Friday until the commencement of school the following Monday;
(f) For a period of time on X’s birthday, from 3pm until 6pm if a school day, and from 1pm until 6pm if a non-school day;
(g) From 5pm Christmas Day until 7pm Boxing Day in each even-numbered year (being 2018, 2020 etc.);
(h) Such further and/or other periods as agreed between the parents from time to time.
4.
X’s time with Mr Dempsey is suspended and Ms Nava shall spend time with X for each of:
(a) The Mother’s Day weekend in each year from the conclusion of school Friday until the commencement of school Monday;
(b) From 5pm Christmas Day until 7pm Boxing Day in odd-numbered years (being 2019, 2021 etc.);
(c) For a period on X’s birthday if he is not already in her care from 3pm until 6pm if a school day, and from 1pm until 6pm if a non-school day.
5.
Each parent be permitted to telephone and speak with X each Tuesday, Thursday and Saturday if he is not and has not been in their care, to occur between 6pm and 7pm with the parent wishing to speak to X initiating the call and with the parent who has care of X ensuring that their telephone service is switched on, charged, available and in a mobile service area, and with X to be given privacy to speak with their parent without interruption or distraction.
6.
Changeover shall occur by Mr Dempsey collecting X from and returning X to his school on any occasion that commences or concludes with school attendance, and on all other occasions Mr Dempsey shall collect X from Ms Nava’s residence at the commencement of time, and Ms Nava shall collect X from Mr Dempsey’s residence at the conclusion of time.
7.
Each parent shall advise the other in writing within 48 hours of their current residential address, current contact telephone number and email details, and shall advise one another in writing within 24 hours of any change to those details.
8.
The parents shall do all things and acts necessary to ensure that X consults with Dr A, paediatrician of Hospital B in March 2019 and that X continues to consult with Dr A for so long as she considers it necessary or desirable, and provided that if Dr A is no longer able to provide treatment that the parents will consult with X upon such ever doctor as Dr A may refer the parties to.
9.
The parties shall follow all directions and recommendations of Dr A (or any subsequent treating doctor) in relation to X’s diagnoses of ASD and ADT, including:
(a) Referral for any occupational therapy, therapy and speech therapy required;
(b) Medication and referrals for any medical treatment;
(c) Any other referrals required.
10.
The parties shall do all acts and things necessary to ensure that X continues to see Dr C Psychologist.
11.
The parents shall do all acts and things to ensure that X’s general practitioner is, as far as practicable and save and except in the case of emergency, Dr D of Medical Centre E whilst in the Mother’s care, or Dr F at Medical Centre G (or such other practitioner as can consult with X if those doctors are unavailable).
12.
Neither parent shall cause or allow X to attend on any other medical practitioner, therapist, or treater except as provided for in these Orders, and in the event that there is a dispute in relation to future treatment, diagnosis or therapy, the parents shall:
(a) Ensure that the parties use their best endeavours to reach a joint decision about that decision; and
(b) If no agreement is reached between the parents within fourteen days of first consulting with each other, then Ms Nava shall make the final decision and shall advise Mr Dempsey in writing of that decision.
13.
Within 24 hours of these Orders, Mr Dempsey shall provide to Ms Nava all and any documentation he has already completed in relation to the child’s eligibility and any claim for service under the National Disability Insurance Scheme, and each parent shall cooperate with each other in making future claims for such assistance.
14.
In order to facilitate the above Orders, Mr Dempsey and Ms Nava shall ensure:
(a) All appointments are made in consultation with each other;
(b) Both parents are invited to attend such appointments, either together or separately, at the discretion of the medical practitioner;
(c) Both parents shall ensure the other is advised ahead of time of all appointment times and dates for each medical and therapy appointment for X;
(d) Both parents shall ensure that the other has been given any documentation that the parent completes in relation to X’s therapy and medical needs;
(e) Each parent shall be able to participate fully in the provision of information to or receipt of information from medical practitioners and therapists; and
(f) Each parent shall do all things necessary to ensure that each parent is able to receive any report produced by any medical practitioner or therapist for X.
15.
Mr Dempsey and Ms Nava shall do all things and acts necessary to ensure that the details of each parent are recorded at any school that X attends as both parent and emergency contact parent, and so as to authorise the school to communicate with each parent and to enable each parent to communicate with the school, obtain information and attend events and activities that parents are invited or encouraged to attend, including, but not limited to, parent-teacher interviews (noting that it is not required that the parents attend such interviews jointly);
16.
In the even that X is hospitalised or receiving medical attention, the parent who has care of X shall notify the other parent as soon as practicable after first contact with the medical practitioner, medical centre or hospital, and do all acts and things necessary to authorise the medical practitioner to communicate with the other parent about the child’s illness or condition, and any treatment recommended or provided and to visit the child if hospitalised.
17.
Each parent shall refrain from making derogatory or critical comments or remarks in relation to the other parent in the presence or hearing of X and each parent shall remove X from the presence or hearing of any other person who is making critical or derogatory comments about the other parent in his presence or hearing.
18.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
19.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
20.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
21.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
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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