FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOLL & NOLL | [2019] FCCA 1083 |
| Catchwords: FAMILY LAW – Parenting – interim proceedings - application by child’s Father to live with him – the school the child to attend – the time to be spent with each parent – Mother registered sex offender – appointment of an Independent Children’s Lawyer – child to live with Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA Sex Offenders Registration Act 2004 (Vic) |
| Cases cited: Eddington & Eddington (No 2) (2007) FLC 93-349 |
| Applicant: | MR NOLL |
| Respondent: | MS NOLL |
| File Number: | MLC 1475 of 2019 |
| Judgment of: | Her Honour Judge C. E. Kirton QC |
| Hearing date: | 11 April 2019 |
| Date of Last Submission: | 11 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | ABF Legal |
| Solicitors for the Respondent: | Thexton Lawyers |
ORDERS
All previous parenting Orders with respect to the child [X], born … 2013 ([X]) be discharged.
UNTIL FURTHER ORDER:
Parenting
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for [X].
[X] live with the Father.
[X] spend time and communicate with the Mother as follows:
(a)During school term time each alternate Wednesday from the conclusion of school or 3.15 pm to the commencement of school or 8.45 am on the following Monday.
(b)For half of each of the school holidays on a week about basis, as follows:
(i)In even-numbered years, with the Mother in the first week of each of the school holidays;
(ii)In odd-numbered years, with the Father in the first week of each of the school holidays.
(c)As may otherwise be agreed between the Father and the Mother in writing (including text or email).
[X] shall commence spending time with the Mother pursuant to Order (4)(a) from Wednesday 15 May 2019.
Education
[X] be forthwith enrolled at School A, Town B (School) to commence immediately.
The Father authorise the School to:
(a)Provide to the Mother, at the expense of the Mother, copies of all reports, notices and applications for photographs in relation to [X].
(b)Communicate with the Mother either by telephone, in writing or by personal attendance, in relation to [X]’s progress.
(c)Allow the Mother to attend all functions to which parents are invited.
The Mother is at liberty to attend school events, parent-teacher interviews and the like to which parents are invited.
Special Days
Notwithstanding any other order, [X] spend time with the Father and the Mother at Christmas as follows:
(a)In even-numbered years:
(i)From 12 noon Christmas Eve until 12 noon Christmas Day with…
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- NOLL & NOLL [2019] FCCA 1083
- Case
- [2019] FCCA 1083
- Decision Date
CaseChat Overview and Summary
The court was required to determine the interim parenting orders for [X], including where the child would live, which school the child would attend, and the specific arrangements for the child to spend time with and communicate with both parents. The court also needed to consider the appointment of an Independent Children’s Lawyer to represent the child's interests.
Her Honour Judge Kirton QC ordered that all previous parenting orders be discharged. Until further order, the parents were to have equal shared parental responsibility for [X]. The child was to live with the Father, and specific, detailed arrangements were made for the child to spend time and communicate with the Mother, including during school terms and holidays, with particular provisions for Christmas and Easter. The child was to be enrolled at a specified school, with provisions for the Father to authorise the school to provide information to the Mother and for the Mother to attend school events. The court also made orders regarding communication between parents and the child, the exchange of information about the child's health and parental contact details, and a mutual non-denigration clause. Further orders addressed interstate and international travel and the appointment of an Independent Children’s Lawyer. The matter was adjourned for mention.
Orders
Orders of the court
1.
All previous parenting Orders with respect to the child [X], born … 2013 ([X]) be discharged.
UNTIL FURTHER ORDER:
Parenting
2.
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for [X].
3.
[X] live with the Father.
4.
[X] spend time and communicate with the Mother as follows:
(a) During school term time each alternate Wednesday from the conclusion of school or 3.15 pm to the commencement of school or 8.45 am on the following Monday.
(b) For half of each of the school holidays on a week about basis, as follows:
(i) In even-numbered years, with the Mother in the first week of each of the school holidays;
(ii) In odd-numbered years, with the Father in the first week of each of the school holidays.
(c) As may otherwise be agreed between the Father and the Mother in writing (including text or email).
5.
[X] shall commence spending time with the Mother pursuant to Order (4)(a) from Wednesday 15 May 2019.
Education
6.
[X] be forthwith enrolled at School A, Town B (School) to commence immediately.
7.
The Father authorise the School to:
(a) Provide to the Mother, at the expense of the Mother, copies of all reports, notices and applications for photographs in relation to [X].
(b) Communicate with the Mother either by telephone, in writing or by personal attendance, in relation to [X]’s progress.
(c) Allow the Mother to attend all functions to which parents are invited.
8.
The Mother is at liberty to attend school events, parent-teacher interviews and the like to which parents are invited.
Special Days
9.
Notwithstanding any other order, [X] spend time with the Father and the Mother at Christmas as follows:
(a)In even-numbered years:
(i) From 12 noon Christmas Eve until 12 noon Christmas Day with the Father;
(ii) From 12 noon Christmas Day to 12 noon Boxing Day with the Mother.
(b) In odd-numbered years:
(i) From 12 noon Christmas Eve until 12 noon Christmas Day with the Mother;
(ii) From 12 noon Christmas Day to 12 noon Boxing Day with the Father.
10.
Notwithstanding any other order, [X] spend time with the Father and the Mother at Easter as follows:
(a)In even-numbered years:
(i) From Thursday 5.00 pm until Saturday 5.00 pm with the Father;
(ii) From Saturday 5.00 pm until Sunday 5.00 pm with the Mother.
(b) In odd-numbered years:
(i) From Thursday 5.00 pm until Saturday 5.00 pm with the Mother;
(ii) From Saturday 5.00 pm until Sunday 5.00 pm with the Father.
11.
The Father’s time with [X] be suspended as follows:
(a) In the event that Mother’s Day falls during the Father’s time, then the time with the Father be suspended from 5.00 pm on Saturday until 5.00 pm Sunday.
(b) In the event that [X]’s birthday falls during the Father’s time, then the time with the Father be suspended from the conclusion of school or 3.15 pm on [X]’s birthday to the commencement of school or 8.45 am the following day.
(c) In the event that the Mother’s birthday falls during the Father’s time, then the time with the Father be suspended from the conclusion of school or 3.15 pm on the Mother’s birthday to the commencement of school or 8.45 am the following day.
12.
The Mother’s time with [X] be suspended as follows:
(a) In the event that Father’s Day falls during the Mother’s time, then the time with the Mother be suspended from 5.00 pm on Saturday until 5.00 pm Sunday;
(b) In the event that [X]’s birthday falls during the Mother’s time, then the time with the Mother be suspended from the conclusion of school or 3.15 pm on [X]’s birthday to the commencement of school or 8.45 am the following day;
(c) In the event that the Father’s birthday falls during the Mother’s time, then the time with the Mother be suspended from the conclusion of school or 3.15 pm on the Father’s birthday to the commencement of school or 8.45 am the following day.
Changeovers
13.
For the purposes of Order 4(a), the Mother shall be responsible for:
(a) At the commencement of [X]’s time with the Mother, collecting [X] from the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email);
(b) At the conclusion of [X]’s time with the Mother, returning [X] to the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email).
14.
(a) For the purposes of order (4)(b), the school holiday period commences after school on the final day of the relevant school term and concludes at 5.00 pm the day before the commencement of the next school term.
(b) For the purposes of order 4(b), the parent who is to commence time with [X] is to collect [X]:
(i) From the School at the conclusion of school; or
(ii) The other parent’s residence or such other location as the parties may agree in writing (including text or email), as the case requires at 10.00 am.
15.
For the purposes of Orders 9 and 10, the parent who is to commence time with [X] is to collect [X] from the other parent’s residence or such other location as the parties may agree in writing (including text or email), as the case requires.
16.
For the purposes of Order (11), the Mother shall be responsible for:
(a)At the commencement of [X]’s time with the Mother, collecting [X] from the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email).
(b) At the conclusion of [X]’s time with the Mother, returning [X] to the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email).
17.
For the purposes of Order (12), the Father shall be responsible for:
(a)At the commencement of [X]’s time with the Father, collecting [X] from the School or the Mother’s residence or such other location as may be agreed by the parties in writing (including text or email).
(b) At the conclusion of [X]’s time with the Father, returning [X] to the School or the Mother’s residence or such other location as may be agreed by the parties in writing (including text or email).
Communication
18.
That each parent be at liberty to communicate with [X] by telephone or FaceTime on Saturday nights between 5.00 pm and 6.00 pm when [X] is not in that parent’s care and the resident parent shall do all things necessary to facilitate such communication. During any such communication, the resident parent is restrained from remaining within hearing distance of [X].
Parents to provide information
19.
Each parent forthwith keep the other informed of any illness, injury or accident suffered by [X] requiring medical treatment, and provide the other parent with details of [X]’s treatment and medical practitioner and authorise such medical professional to communicate with the other parent.
20.
The parents shall advise each other of any change of telephone number, including landline number or residential address within 24 hours of such change occurring.
Mutual Non-Denigration
21.
The Father and the Mother, their servants and agents be and are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
(b) Discussing these proceedings;
to or in the presence or hearing of [X] and from permitting any other person to do so.
Interstate and International Travel
22.
The Mother and the Father be permitted to travel interstate during their time with [X] during the Victorian gazetted school holidays or as otherwise agreed in writing between the parties (including text and email).
23.
The Mother and the Father be permitted to travel internationally (International Travel) with [X]:
(a) Provided that at least 60 days prior to the proposed International Travel they:
(i) Advise the other parent in writing; and
(ii) Provide to the other parent:
a. A comprehensive itinerary of the travel arrangements;
b. Copies of the airline tickets/e-tickets showing the date and time of departure and arrival back in Australia;
c. A copy of a current certificate of travel insurance and policy of insurance covering [X] for the whole of the period of the International Travel;
d. Telephone contact details where [X] can be reached during the period of the International Travel.
(b) As may be otherwise agreed in writing between the parties .
24.
In the event that the International Travel interferes with the other parent’s time with [X], make up time be arranged with the non-travelling parent either before or after the travel dates.
Appointment of Independent Children’s Lawyer
25.
Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the child [X], born … 2013 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such an arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a) Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b) Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.
(c) The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ is published at (http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccwweb/about/policies-and-procedures/guidelines-independent- childrens-lawyer), and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d) The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than five business days before the trial.
26.
Copies of the Family Report by Dr C, dated 4 April 2019 (Family Report), if accompanied by a copy of this Order, may be given to:
(a)Any Independent Children’s Lawyer in the proceedings.
(b) A child protection authority.
(c) A State or Territory legal aid authority.
AND that no person release the Family Report, or provide access to the Family Report, to any other person.
Further Listing
27.
The matter be adjourned to the Federal Circuit Court of Australia on 19 August 2019 at 9.30 am for mention.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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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