Newstead and Burns - [2016] FamCA 850

FAMILY COURT OF AUSTRALIA

NEWSTEAD & BURNS

[2016] FamCA 850

FAMILY LAW – CHILDREN – Spend time – limited issue as to whether the father’s time with the children should commence on a Thursday or Friday and whether he should have an additional night with the children each alternate week – changeovers and school holidays – detailed orders also sought by the mother in relation to the father’s use of social media, communication between the parties, the father’s attendance at the children’s school, – previous orders made that the children live with the mother and that the mother have sole parental responsibility – finding that the mother was subjected to family violence and the children have been exposed to that violence – where the father shows little insight into the effect of his behaviour upon the mother and the children – where the father has demonstrated a lack of boundaries in his behaviour –final orders made that the father’s time with the children commence on a Thursday night rather than a Friday – no orders made for the father to have an additional night with the children in the alternate week

Family Law Act 1975 (Cth)

Harridge and Anor & Harridge and Anor [2010] FamCA 445
Poisat & Poisat [2014] FamCAFC 128; (2014) FLC 93-597

APPLICANT:

Mr Newstead

RESPONDENT:

Ms Burns

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

FILE NUMBER:

MLC

2219

2012

DATE DELIVERED:

29 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

15 - 19 February 2016 and 14 & 15 April 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Moores Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

ORDERS

IT IS ORDERED THAT

Paragraph 4 of the orders made 17 February 2016 and paragraph 1 of the orders made 15 April 2016 be discharged.
The children B born … 2009 and C born … 2010 spend time with the father as follows:
(a)from the conclusion of school on Thursday 6 October 2016 until the commencement of school on Monday 10 October 2016 (or if Thursday or Monday is a non-school attendance day, from the conclusion of school on the last school attendance day of the week to the commencement of school on the next school attendance day) and each alternate weekend thereafter;
(b)in the summer school holidays in 2016/2017 for 5 nights per fortnight commencing at the conclusion of school on 14 December 2016 until 5.00 pm on Monday 19 December 2016, and in each fortnight thereafter, and to conclude in the event that it is the children’s time with the father at 5.00 pm on the day prior to the resumption of school;
(c)for half of the summer school holidays:
(i)in 2017/2018 for 14 nights commencing on the last day of the school year and concluding at 5.00 pm on the last day of that period and for the first half of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newstead and Burns

Details

AGLC: Newstead and Burns [2016] FamCA 850
Case: [2016] FamCA 850
Decision Date: 29 September 2016

CaseChat Overview and Summary

This matter concerned orders made by Macmillan J in the Family Court of Australia regarding the parenting arrangements for two children, B and C. The proceedings involved the father and mother of the children, with the Independent Children's Lawyer's appointment being discharged.

The court was required to determine the specific times the children would spend with their father, including during school holidays and weekends, and to establish protocols for changeovers, communication, and the dissemination of information regarding the children and the proceedings. Further issues included the father's access to school events and information, and restrictions on his ability to enrol the children in extra-curricular activities or have them assessed by specialists without the mother's consent. The court also addressed the father's conduct on social media and his consumption of alcohol or drugs prior to or during his time with the children.

Macmillan J made detailed orders concerning the father's time with the children, specifying alternate weekends, significant portions of school holidays, and particular public holidays and events. The court also ordered that the father's time with the children be suspended on Mother's Day weekend and certain Christmas and Easter periods in alternate years. Protocols for changeovers were established, including supervised changeovers until the end of 2018 and specific locations thereafter, with provisions for late arrivals and the suspension of contact if unsupervised changeovers on non-school days were not possible. The court also mandated communication by text message for certain matters, required notification of serious illness or injury, and permitted the father hospital visits under specific conditions. Crucially, the father was restrained from enrolling the children in extra-curricular activities or having them assessed by specialists without the mother's written consent, and was also restricted from publishing images or information about the children or proceedings on social media, with limited exceptions for personal Facebook posts.

The court ordered the discharge of paragraph 4 of the orders made on 17 February 2016 and paragraph 1 of the orders made on 15 April 2016. The father's time with the children was then detailed in extensive paragraphs, alongside provisions for parental communication, notification of illness, and restrictions on the father's conduct. The appointment of the Independent Children's Lawyer was discharged, and the father's Amended Initiating Application and the mother's Amended Response were dismissed, with the matter removed from the list of pending cases. Documents produced to the court were directed to be returned to their original producers.

Orders

Orders of the court

IT IS ORDERED THAT

Paragraph 4 of the orders made 17 February 2016 and paragraph 1 of the orders made 15 April 2016 be discharged.

The children B born … 2009 and C born … 2010 spend time with the father as follows:

(a) from the conclusion of school on Thursday 6 October 2016 until the commencement of school on Monday 10 October 2016 (or if Thursday or Monday is a non-school attendance day, from the conclusion of school on the last school attendance day of the week to the commencement of school on the next school attendance day) and each alternate weekend thereafter;

(b) in the summer school holidays in 2016/2017 for 5 nights per fortnight commencing at the conclusion of school on 14 December 2016 until 5.00 pm on Monday 19 December 2016, and in each fortnight thereafter, and to conclude in the event that it is the children’s time with the father at 5.00 pm on the day prior to the resumption of school;

(i) in 2017/2018 for 14 nights commencing on the last day of the school year and concluding at 5.00 pm on the last day of that period and for the first half of the balance of the holidays then remaining after the children have spent 14 nights with the mother from 5.00 pm on the last day of the children’s time with the mother until 5.00 pm on the midpoint of the balance then remaining;

(ii) in 2018/2019 and each alternate year thereafter for the first half of the school holidays from the conclusion of school on the last day of the school year until 5.00 pm on the day being the midpoint of the holidays;

(iii) in 2019/2020 and each alternate year thereafter for the second half of the school holidays commencing at 5.00 pm on the day that is the midpoint of the holidays until 5.00 pm on the day prior to the resumption of school;

(d) for half of all school term holidays commencing in the Term 1 school holidays in 2017 at times to be agreed in writing between the parties and in the absence of agreement:

(i) in 2017 and each alternate year thereafter for the second half of the school holidays commencing at 5.00 pm on the day that is the midpoint of the school term holidays and concluding at 5.00 pm on the day prior to the resumption of school;

(ii) in 2018 and each alternate year thereafter for the first half of the school holidays commencing at the conclusion of school until 5.00 pm on the day being the midpoint of the school term holidays;

(e) on the Father's Day weekend from 5.00 pm on the Saturday preceding Father's Day until 5.00 pm on Father's Day;

(f) from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2016 and each alternate year thereafter;

(g) from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2017 and each alternate year thereafter;

(h) provided the father advises the mother by 31 January each year, on one D Club Family Day weekend for up to 24 hours from 4.00 pm on Saturday until 4.00 pm on Sunday;

(i) at Easter from the conclusion of school (or 3.00 pm) on the Thursday before Good Friday until 5.00 pm on Easter Saturday in 2018 and each alternate year thereafter and from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday in 2017 and each alternate year thereafter. In the event that Easter time falls within the school holiday period, four days will be deducted from the total days of holidays for the purposes of calculating half of the school holiday period;

(j) in the event the D Club are playing in the AFL Grand Final, from 10.00 am on the AFL Grand Final public holiday Friday (or from the conclusion of school on Friday if the Friday is not a public holiday) until 6:30 pm on the AFL Grand Final day;

(k) at such times as agreed between the parties in writing.

The father's time with the children be suspended:

(a) on the weekend of Mother's Day from 5.00 pm on the Saturday preceding Mother's Day;

(b) from 5.00pm on Christmas Day until 5.00 pm on Boxing Day in 2016 and each alternate year thereafter;

(d) at Easter from the conclusion of school (or 3.00 pm) on the Thursday before Good Friday until 5.00 pm on Easter Saturday in 2017 and each alternate year thereafter and from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday in 2018 and each alternate year thereafter;

(e) at such further or other times as agreed between the parties in writing.

In the event that either of the children’s birthdays occurs on a weekend the parent who does not have care of the children spend time with the children from either 10.00 am until 2.00 pm or 3.00 pm until 7.00 pm, such time to be as nominated by the mother.

Changeover shall occur as follows:

(a) until the end of 2018:

(i) at the children’s school or if a non-school day then at Contact Centre E or in the event that Contact Centre E is unable to accommodate the parties then at a supervised contact centre to be agreed upon by the father and the mother or by a private supervisor and at a location to be agreed upon and in default of agreement to be nominated by the mother;

(ii) in the event that the father spends time with the children pursuant to paragraph 2(j) hereof changeover shall occur in the car park of McDonald’s in Suburb I supervised by a private supervisor to be agreed upon by the father and the mother no later than 7 days prior to the day of the AFL Grand Final and in default of agreement to be nominated by the mother;

(iii) all costs of supervised changeovers are to be shared equally between the parties;

(iv) in the event that changeovers occurring on a non-school day cannot be supervised then contact shall be suspended;

(b) from the commencement of 2019 at the children’s school or if a non-school day then at a McDonald’s or like establishment to be nominated by the mother;

(c) the father be and is hereby restrained from permitting any other person to attend changeover of the children on his behalf save and except as agreed between the parties in writing;

(d) in the event that the father does not arrive to collect the children at the stated time and has not advised the mother before the stated time that he would be delayed, then the mother may after thirty minutes of the stated time leave the changeover venue with the children and that period of time with the father shall not take place.

(e) the designated mobile telephone referred to in paragraph 7 hereof shall be turned on at all times during contact times including for the period of 60 minutes before changeover.

Each parent facilitate telephone communication between the children with the other parent who does not have the care of the children when reasonably requested by either or both of the children.

Each parent provide to the other a mobile telephone contact number for the parent with the care of the children to communicate with the other parent only when the children are in their care and only in the case of emergency.

In the event times to be spent with the children need to be changed, or, in the case of school holiday contact, confirmed, or there is a need to communicate instructions in relation to medication the children may be required to take, the parents communicate by text message on the mobile telephone number they have been provided with by the other parent pursuant to paragraph 7 hereof.

In the event that either or both of the children are invited to a party or other special occasion at a time when the children are in the other parent's care, the parent forthwith upon receiving the invitation provide a copy or notice of it by text message to the other parent, to enable that party to respond to the invitation as they may choose.

10.

The parents shall as soon as practicable notify the other of any serious illness or injury sustained by either or both of the children whilst in their care and provide any particulars of treatment received or required.

11.

In the event that either or both of the children are hospitalised the father shall be permitted to visit the children in the hospital for up to two hours per day at times to be nominated by the mother and subject to the directions of the hospital and/or the children’s treating medical practitioners.

12.

The father be and is hereby restrained from enrolling or committing the children to any extra-curricular activity without first obtaining the mother's consent in writing.

13.

Each parent inform the other by text message if they intend to take the children outside of the State of Victoria during the period the children are in that parent's care such notification to be given not less than 72 hours prior to the children’s proposed departure from the State of Victoria .

14.

Without admitting the necessity for same, the mother and father, their servants and agents be and are hereby restrained from abusing, insulting or otherwise denigrating the other parent or member of the other parent's family or friends in the presence or hearing of the children.

15.

The father shall not for a period of 24 hours prior to or during his time with the children:

(a) consume alcohol to excess; or

(b) use or take any drug of addiction; or

and if the father reasonably appears to be intoxicated or otherwise under the influence of alcohol or drugs at the commencement of time, then time on that occasion shall be suspended.

16.

In the event that the father participates in counselling with Ms H then he be responsible for the costs of such attendance.

17.

The mother be at liberty to provide to Ms H and the children's school a copy of any orders made by the Family Court of Australia and/or reports produced for the purposes of these proceedings.

18.

The mother authorise the children's school to provide to the father, at the father’s expense, all notices, school reports and school photographs.

19.

The father be permitted to attend:

(a) two school events for each child per year with the mother to nominate three school events per child per year and the father to elect two events from those nominated by the mother;

(b) all school events of the children occurring during the time the children are in his care;

(c) parent teacher interviews with the mother and the father to arrange separate interviews for each of them to attend; and

(d) any other school events as may be agreed by the parties in writing.

20.

The father be and is hereby restrained from causing the children to attend upon or be attended upon, assessed, reviewed or examined by any counsellor, therapist, psychologist or other specialist without the consent in writing of the mother.

21.

The father forthwith remove any historical profile pictures and/or cover photos that include photographs of the children from his Facebook page.

22.

The father be and is hereby restrained from publishing, printing, or otherwise disseminating images or photographs of the children, or references to the children or these court proceedings on social media, print media or any other electronic or publicly accessible devices/forums/platforms, including opening a Facebook page in the name of either or both of the children save and except that the father be permitted to post photographs of the children on his Facebook page subject to him maintaining the appropriate security settings limiting access to those photographs to his friends on Facebook.

23.

The father be and is hereby restrained from sharing or disclosing any information, including any documents or correspondence, in relation to these court proceedings on social media, by email or any other means to any person who is not a party to or an expert witness in these proceedings, his legal representative or any medical or mental health practitioner upon whom he may be attending for treatment.

24.

The appointment of the Independent Children’s Lawyer be discharged.

25.

The Amended Initiating Application of the father filed 10 April 2015 and the Amended Response to Initiating Application of the mother filed 27 April 2015 be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.

IT IS DIRECTED THAT

That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.

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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