FAMILY COURT OF AUSTRALIA
| NEADEN & FILLBOROW | [2020] FamCA 607 |
| FAMILY LAW – FAMILY VIOLENCE – allegations of abuse of the children – abuse not dependent on intent or recklessness but dependent on result – allegations of risk of psychological harm to the children caused by adherence to abuse allegations – role of evidence relating to physical and sexual abuse where findings not sought by the party adducing the evidence – significance of jurisdiction not being strictly inter partes – parenting capacity – risks occasioned by lack of parenting capacity – characteristics of children – where children face increasing risk if continue to live with the Mother – where risks will abate over time if live with the Father – where change of residence in best interests of children –- where Mother has not complied with orders for children to spend time with the Father – where Father has not seen children since 2014 – views of children whether there should be a moratorium on time with Mother – where supervised time transitioning to weekend time is in best interests – where Final Orders will reduce likelihood of further litigation |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(d), 60CC(3)(g), 60CC(3)(h), 60CC(3)(j), 60CC(3)(l), 63A-63H, 65DAA, 68F |
| Johnson & Page [2007] FamCA 1235 Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7 |
| APPLICANT: | Mr Neaden |
| RESPONDENT: | Ms Fillborow |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hansen |
| FILE NUMBER: | CAC | 114 | of | 2011 |
| DATE DELIVERED: | 24 July 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 25-27 May 2020; 30 June 2020; 1 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J Haddock |
| SOLICITOR FOR THE APPLICANT: | Walsh & Blair |
| COUNSEL FOR THE RESPONDENT: | Mr Stagg |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid ACT |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Blank |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Friedlieb Fox Mcleod |
Orders
That all previous parenting orders made by the Court be discharged.
Parental responsibility and Live With
That the Father has sole parental responsibility for the children X, born … 2007 and Y, born … 2009, (the children).
Prior to and when making a decision about the long-term issues listed above, the Father will:
(a)inform the Mother in writing of the decision to be made (where possible at least 28 days before it is to be made);
(b) invite written comments from the Mother;
(c)if the Mother responds within the stated timeframe, take such comments into account when making the decision; and
(d)inform the Mother in writing of the decision.
That the children live with the Father.
That following the making of these orders the Mother shall immediately deliver the children to…
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- Neaden and Fillborow [2020] FamCA 607
- Case
- [2020] FamCA 607
- Decision Date
CaseChat Overview and Summary
The court was required to determine a range of issues relating to parental responsibility, the children's living arrangements, and the time each parent would spend with the children. Specifically, the court had to decide on the allocation of parental responsibility, whether the children should live with the father, the nature and extent of therapeutic counselling for the children, and the specific arrangements for the children's time with the mother, including during school terms, holidays, and special days. The court also needed to address handover procedures, communication between parents, and injunctive relief to protect the children from parental conflict.
Gill J ordered that all previous parenting orders be discharged. The father was granted sole parental responsibility for the children, and the children were ordered to live with him. The father was directed to inform the mother in writing of decisions regarding long-term issues, invite her comments, and take those comments into account if she responded within the specified timeframe, before informing her of the final decision. The father was also ordered to arrange for the children to attend therapeutic counselling, with the costs to be borne by him. The orders then detailed a phased approach to the children spending time with the mother, commencing with supervised contact and progressing to alternate weekends and a proportion of school holidays and Christmas, with specific arrangements for special days. Injunctions were imposed restraining both parents from denigrating the other or discussing proceedings in the presence of the children. Both parents were permitted to liaise directly with the children's school and sporting bodies, and a communication book was to be used. The Independent Children's Lawyer was discharged eight weeks from the date of the orders.
Orders
Orders of the court
1.
That all previous parenting orders made by the Court be discharged.
Parental responsibility and Live With
2.
That the Father has sole parental responsibility for the children X, born … 2007 and Y, born … 2009, (the children).
3.
Prior to and when making a decision about the long-term issues listed above, the Father will:
(a) inform the Mother in writing of the decision to be made (where possible at least 28 days before it is to be made);
(b) invite written comments from the Mother;
(c) if the Mother responds within the stated timeframe, take such comments into account when making the decision; and
(d) inform the Mother in writing of the decision.
4.
That the children live with the Father.
5.
That following the making of these orders the Mother shall immediately deliver the children to the Independent Children’s Lawyer (the ICL), at B Street City C, for the ICL to explain the orders to the children and for the Father to collect the children.
Therapeutic Family Counselling
6.
That the Father shall cause the children to attend upon Ms D of E Counselling Service at F Street, City G for counselling as soon as is reasonably practicable following the making of these orders.
7.
That at the direction of Ms D the Father will make the children available to attend on Ms D for therapeutic family counselling.
8.
That the cost of the children's attendances with Ms D be paid for by the Father.
9.
That a copy of these orders and a copy of the Single Expert reports prepared by Ms H dated 3 May 2017 and 8 July 2019 be provided to Ms D by the ICL.
Time with the Mother
10.
The children shall spend such time with the Mother as may be agreed between the parents in writing and failing such agreement:
(a) That for a period of three months from the date of these orders the children shall have supervised time with the Mother once each week at the J Contact Centre at such times as the J Contact Centre may make available;
(b) That at the conclusion of the period above, the children commence spending each alternate weekend during school term time subject to the following arrangements:
(i) The alternate weekends shall commence each first weekend following the start of a school term;
(ii) The Mother shall collect the children at the end of school on the Friday and return them to school the following Monday, unless the Monday is a public holiday in which case she shall return the children on the Tuesday.
11.
In order to facilitate Order 10 the parties shall, as soon as reasonably practicable, undertake the necessary intake processes for the J Contact Centre.
12.
The Mother is responsible for the payment of fees in respect of the J Contact Centre.
School term holiday time
13.
From the first school holiday that occurs after the time in (10)(b) commences, the children spend time with the Mother for one half of each New South Wales gazetted school term holiday period as agreed and failing agreement from after school on the last day of term until 12 pm on the middle Saturday.
Christmas holiday time
14.
From the first Christmas holiday time that occurs after the time order 10(b) above, the children spend time with the Mother:
(a) In odd numbered years from 3 pm on 24 December to 12 pm on 26 December;
(b) In even numbered years from 3 pm on 26 December to 12 pm on 28 December; and
(c) In each year for a period of 14 days to occur as agreed and failing agreement, to commence at 12 pm on 3 January and conclude at 12 pm on 17 January.
Special days
15.
Each of orders 15 to 17 applies once after time in order 10(b) commences.
16.
If Mother’s Day falls on a weekend when the children are not already spending time with the Mother, from 5 pm on the Saturday before Mother’s Day until 5 pm on Mother’s Day;
17.
On each of the children’s and the Mother’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
18.
That the Mother’s time with the children be suspended:
(a) If Father’s Day falls on a weekend when the children are to be spending time with the Mother, from 5 pm on the Saturday before Father’s Day until 5 pm on Father’s Day;
(b) On each of the children’s and the Father’s birthday, if the children are to be spending time with the Mother on those occasions, for two hours from immediately after school if the birthday falls on a school day or four hours from 3 pm if the birthday falls on a non-school day.
Handover
19.
Unless otherwise specified or agreed, handover for the children shall be:
(a) At each child’s school on a school day; and
(b) If not on a school day, at McDonalds, Suburb Z.
Other Orders
20.
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
21.
That in the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent as soon as practicable to inform them.
22.
That each of the parties, their servants and agents be hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or their family members in the presence or hearing of the children; and
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them.
23.
Each parent will do all things reasonably possible to prevent other persons from permitting any other person from discussing these proceedings or abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or their family members in the presence or hearing of the children.
24.
That by these orders the Mother and Father be each permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
25.
That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents, noting that the Mother is not permitted to attend until time in order 10b has commenced.
26.
That the parties establish and use a communication book and record, for the information of the other, issues that are limited to the children’s care and that the communication journal accompany the children between the parents’ homes.
Discharge of ICL
27.
That the ICL is discharged 8 weeks from the date of these orders.
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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