FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEWSOME & NEWSOME | [2018] FCCA 65 |
| Catchwords: FAMILY LAW – Second contested hearing – four children – mother has failed to comply with Consent Orders – mother has orchestrated and acquiesced to regular undermining of the children’s time with the father – false allegations by the mother of abuse against all of the four children of the relationship – mother’s denigration of the father supported by those in the mother’s church – father referred to as a “(omitted)” once the father ceased attending the mother’s church – children to live with the father – restraints regarding the children attending church. |
| Legislation: Family Law Act 1975, ss.60CC, 61D |
| Cases cited: Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MR NEWSOME |
| Respondent: | MS NEWSOME |
| File Number: | BRC 10617 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 13, 14, 15 and 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Cairns |
| Delivered on: | 17 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pendergast |
| Solicitors for the Applicant: | Munro Legal |
| Counsel for the Respondent: | Mr Sorensen |
| Solicitors for the Respondent: | Briese Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr McGregor |
| Solicitors for the Independent Children's Lawyer: | Mr Kingston |
ORDERS
It is ordered that:
All previous Orders are discharged.
Parental Responsibility
The Father have sole parental responsibility for making all decisions regarding the long term care, welfare and development for W born (omitted) 2002, X born (omitted) 2006, Y born (omitted) 2007 and Z born (omitted) 2009 (“the children”). This includes decisions regarding their education, health and religion, counselling and extra curricula activities.
Residence
That the children live with the Father.
Time with the mother
That for eight weeks from the date of these Orders, the children spend no time and have no communication with the Mother (“the moratorium period”).
That thereafter, the children will spend time with the Mother at the following times, unless agreed otherwise in writing:-
(a)During school terms:
(i)Commencing from after school or 3:00 pm Thursday, 15 March 2018 until before school or 9:00 am Monday each alternate week (or in the event Monday is a public holiday or pupil free day, the time shall be extended to before school or 9:00 am Tuesday).
(b)After the period in Order 4 herein has expired (the moratorium), the mother will spend time with the children during school holidays as follows:
(i)The first half of the school holidays in odd numbered years and each alternate year thereafter;
(ii)The second half of the school holidays in even numbered years and each alternate year thereafter;
(iii)The holiday time will commence at 3:00 pm on either the last day of school or the day midway through the holidays and conclude at 3:00 pm on the day before school recommences or the day being the halfway point during the school holidays.
All other times the children will live with the father save…
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- Case
- [2018] FCCA 65
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were to determine who should have sole parental responsibility for making long-term decisions regarding the children's welfare, education, health, and development, and where the children should reside. Additionally, the court had to establish specific arrangements for the children to spend time with each parent, including provisions for communication, handovers, and special occasions, while also addressing certain restrictions on the mother's contact with specific individuals and religious organisations.
Judge Willis ordered that the father have sole parental responsibility for all long-term decisions concerning the children and that the children live with the father. A moratorium period of eight weeks was imposed, during which the children were to have no contact with the mother. Following this period, detailed arrangements were set out for the children to spend time with the mother during school terms and holidays, with specific provisions for special occasions and telephone contact. The court also imposed restraints on the mother regarding contact with certain individuals and religious groups, and on both parents regarding denigrating each other or discussing the litigation with the children. The father was directed to arrange counselling for the children as needed, and the mother was to facilitate their attendance at extra-curricular activities as directed by the father. The Independent Children's Lawyer was directed to explain the orders to the children and to request their removal from certain school records.
Orders
Orders of the court
It is ordered that:
1.
All previous Orders are discharged.
Parental Responsibility
2.
The Father have sole parental responsibility for making all decisions regarding the long term care, welfare and development for W born (omitted) 2002, X born (omitted) 2006, Y born (omitted) 2007 and Z born (omitted) 2009 (“the children”). This includes decisions regarding their education, health and religion, counselling and extra curricula activities.
Residence
3.
That the children live with the Father.
Time with the mother
4.
That for eight weeks from the date of these Orders, the children spend no time and have no communication with the Mother (“the moratorium period”).
5.
That thereafter, the children will spend time with the Mother at the following times, unless agreed otherwise in writing:-
(a) During school terms:
(i) Commencing from after school or 3:00 pm Thursday, 15 March 2018 until before school or 9:00 am Monday each alternate week (or in the event Monday is a public holiday or pupil free day, the time shall be extended to before school or 9:00 am Tuesday).
(b) After the period in Order 4 herein has expired (the moratorium), the mother will spend time with the children during school holidays as follows:
(i) The first half of the school holidays in odd numbered years and each alternate year thereafter;
(ii) The second half of the school holidays in even numbered years and each alternate year thereafter;
(iii) The holiday time will commence at 3:00 pm on either the last day of school or the day midway through the holidays and conclude at 3:00 pm on the day before school recommences or the day being the halfway point during the school holidays.
6.
All other times the children will live with the father save and except for the special occasions referred to in Order 7 herein.
7.
That the children shall spend time with the Mother and Father on special occasions as follows:-
(a) With the Father from midday on 24 December to midday on 26 December in each even numbered year;
(b) With the Mother from midday on 24 December to midday on 26 December in each odd numbered year;
(c) On the birthday of each child, with the parent they are not living with or spending time with on the day:
(i) If a school day, from after school until 7:00 pm;
(ii) If a non-school day, from 1:00 pm until 7:00 pm;
8.
On each of the parent’s birthdays, if the children are not with that parent, the other parent is to facilitate the children contacting the birthday parent telephone on that day.
Telephone time
9.
After the expiration of clause 4 herein (the moratorium), the Father will do all acts and things to ensure that the children shall communicate by telephone with the Mother on two occasions each week at 6:30 pm. The Father will nominate the two days for this to occur. The Father, on notice to the Mother, is permitted to change the days of the week or the time in the event that the children’s living arrangements clash with this time.
10.
During periods when the children are spending time with the Mother pursuant to these Orders, the Mother will ensure that the children telephone the Father on two occasions at 6:30 pm. The Mother will nominate the two days for this to occur. The Mother is permitted to vary those days or times on notice to the Father.
11.
During the school holiday periods referred to in these Orders, each parent is to facilitate two telephone calls each week between the children and the other parent.
Handovers
12.
Except as otherwise ordered, all of the handovers will occur to and from school on school days. On non-school days, handovers will occur to and from (omitted) Store on (omitted).
13.
Each parent shall deliver and return the children’s clothing, school supplies and belongings in good order to the other parent at times provided for in these Orders.
Restraint
14.
The Mother will do all acts and things necessary to ensure that:
(a) the children are not brought into contact with Mr G and Ms J;
(b) the children do not attend any events attended by or organised by members of the mother’s church or other churches in that organisation or network.
15.
The Father will do all acts and things to organise any counselling or therapeutic treatment for any of the children as part of the exercise of his sole parental responsibility.
16.
The Mother will ensure that the children are taken to their extra curricula activities that occur during their time spent with her, as directed by the Father as part of the exercise of his sole parental responsibility.
17.
Each of the parties are restrained from:
(a) denigrating the other party or the other party’s religious beliefs or lack of them in the presence or hearing of the children and each party will remove the children from any person doing so; and
(b) discussing the evidence in this litigation directly or indirectly with the children and each party will remove the children from the presence of any person doing so.
Other Orders
18.
Each party will keep the other informed in writing of their current residential address, landline telephone number, mobile number and email address and notify any changes within 24 hours of the change.
19.
Each party is at liberty to attend school events and extra curricula activities normally attended by parents, subject always to the discretion of the school or organising body and subject to the terms of these Orders including the moratorium in Order 4.
20.
Each party is at liberty to receive information about the children’s educational progress and school reports, photographs and certificates obtained by the children at their own expense NOTING THAT the Father has sole parental responsibility for making decisions regarding the children’s education.
21.
Each party will inform the other forthwith upon any child suffering a significant medical illness whilst the child is in their care NOTING THAT the Father has sole parental responsibility for making decisions regarding the children’s medical matters.
22.
The Independent Children’s Lawyer in company with the Family Report Writer are DIRECTED to explain these Orders to the children today, prior to the children being handed over to the Father.
23.
That a copy of these Orders is to be provided to each of the children’s schools by the Independent Children’s Lawyer. Further, the Independent Children’s Lawyer is to request each school to remove Mr G or Ms J from the children’s school records including as being an emergency contact.
24.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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 to adjust to and comply with an Order are set out in the fact sheet attached hereto and these particulars are included in these Orders. The Mother is to file and serve an affidavit within 7 days of today’s date confirming that she has read and understands her obligations therein.
25.
The Independent Children’s Lawyer will be discharged upon 12 months expiration from the date of these Orders.
26.
Any application for costs is to be made within 28 days of today’s date.
27.
All outstanding applications are removed from the pending cases list.
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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