Federal Circuit and Family Court of Australia
(DIVISION 2)
O’Hara & Fadley [2022] FedCFamC2F 1801
File number(s): MLC 4419 of 2021 Judgment of: JUDGE O'SHANNESSY Date of res tempore judgment: 19 December 2022 Catchwords: FAMILY LAW – final parenting orders – relocation – res tempore reasons – where the mother seeks to relocate interstate – where the father seeks to restraint mother from moving out of Victoria – where a child does not wish to relocate – where section 61F considered – indigenous connection to place considered – where mother’s proposal reduces frequency of children’s time with father – mother’s proposal in the children’s best interests. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 61F
Family Law Act 1975 Act No. 53 of 1975 as amended, s 60B
Cases cited: Adamson & Adamson (2014) 51 Fam LR 626
Asher & Wilkinson [2020] FamCAFC 44
Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064
Cox & Pedrana [2013] FamCAFC 48
D & SV [2003] FamCA 280; (2003) FLC 93-137
Fox v Percy (2003) 214 CLR 118
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FamCA 1346
Hamish & Brighton [2014] FamCAFC 242
Jurchenko & Foster [2014] FamCAFC 127
McCall & Clarke [2009] FamCFC 92
Morden & Coad [2019] FamCAFC 233
Oswald & Carrington (2016) FamCAFC 152
Sayer & Radcliffe and Anor [2012] FamCAFC 209
U & U [2002] HCA 36
Ulster & Viney [2016] FamCAFC 133
Wagstaff & Wagstaff [2022] FedCFamC1A 119
Division: Division 2 Family Law Number of paragraphs: 111 Date of hearing: 6, 7 & 8 September 2022, 8, 14 & 15 December 2022. Place: City B (via videolink) Counsel for the Applicant: Ms A Skinner Solicitor for the Applicant: Fair Family Law Counsel for the Respondent: Mr D Carne Solicitor for the Respondent: Morrison & Sawyers Lawyers Counsel for the Independent Children's Lawyer: Mr K Nicholson Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 4419 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR O’HARA
Applicant
AND: MS FADLEY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.That Mr O’Hara (‘the Father’), and Ms Fadley (‘the Mother’), have equal shared parental responsibility for:
(a)X born in 2010 (“X”);
(b)Y born in 2015 (“Y”); and
(c)Z born in 2019 (“Z”);
(collectively referred to as “the children”), save that the Mother have sole parental authority for decisions about the children’s education (both current and future) and the children’s health and provided that prior to making a decision about a major long term issue concerning the children’s education or health, the Mother must:
A.Inform the Father in writing (by email or text or via the App), in a timely manner, of the details of the proposed decision/s and the reasons being proposed or…
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CaseChat Overview and Summary
The court considered various factors, including the children’s wishes, their connection to both parents, and the potential impact of the relocation on their lives. The mother argued that the move was necessary for her to pursue better employment opportunities and that it would provide the children with a more stable and nurturing environment. The father, on the other hand, emphasised the importance of the children maintaining their existing relationships with family members in Victoria and argued that the relocation would disrupt their lives and reduce the time they could spend with him.
In reaching its decision, the court found that the mother’s proposal to relocate to Queensland was in the children’s best interests. It noted that the mother had provided a stable and loving environment for the children and that the move would not significantly impact their existing relationships with the father or other family members in Victoria. The court also found that the proposed arrangements for the father’s time with the children were reasonable and would enable him to maintain a meaningful relationship with them despite the relocation.
The court ordered that the children’s primary place of residence be relocated to within 50 kilometres of Suburb Q, Queensland, on or after 16 January 2023. It also set out detailed arrangements for the father’s time with the children, including specific times and locations for changeovers and requirements for the father to complete a Changing Abusive Behaviours program before he could spend unsupervised time with the children. The court further ordered that the mother and father communicate with each other regarding parenting issues through the Talking Parents App and that they take steps to ensure that the children could maintain contact with both parents.
In conclusion, the court found that the mother’s proposal to relocate to Queensland was in the children’s best interests and ordered that the relocation proceed with the proposed arrangements for the father’s time with the children. The court also made orders regarding communication between the parents and the children, as well as the father’s use of drugs and alcohol during his time with the children. The orders reflect the court’s determination that the relocation would not significantly impact the children’s existing relationships with the father or other family members in Victoria and that the proposed arrangements for the father’s time with the children were reasonable and in the children’s best interests.
Orders
Orders of the court
MLC 4419 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR O’HARA
Applicant
AND:
MS FADLEY
Respondent
AND:
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1. That Mr O’Hara (‘the Father’), and Ms Fadley (‘the Mother’), have equal shared parental responsibility for:
(a) X born in 2010 (“X”);
(b) Y born in 2015 (“Y”); and
(c) Z born in 2019 (“Z”);
(collectively referred to as “the children”), save that the Mother have sole parental authority for decisions about the children’s education (both current and future) and the children’s health and provided that prior to making a decision about a major long term issue concerning the children’s education or health, the Mother must:
A. Inform the Father in writing (by email or text or via the App), in a timely manner, of the details of the proposed decision/s and the reasons being proposed or contemplated; and
B. Seek the views and opinions of the Father in respect to such proposed decision/s;
C. Where the Father has responded in a timely and courteous manner, the Mother consider the views and opinions of the Father about the major long term issue; and
D. In any event, promptly advise the Father of that decision by email or text or via the App.
2. The children live with the Mother.
3. The Mother be permitted to relocate the children’s primary place of residence to within 50 kilometres of Suburb Q, Queensland, on or after 16 January 2023.
4. The children spend time with the Father as follows:
(a) While the Mother remains in the City B region;
(i) During school term, each weekend, from 10.00 am Saturday until 4.00 pm Sunday; and
(ii) During the long Summer holiday period in 2022/2023:
A. From 10am on 21 December 2022 until 4pm 22 December 2022 (two days/one night);
B. From 10am on 24 December 2022 until 2pm on 25 December 2022 (two days/one night);
C. From 10am on 28 December 2022 until 4pm on 30 December 2022 (three days/two nights);
D. From 10am 6 January 2023 until 4pm on 8 January 2023 (three days/two night);
E. From 10am on 12 January 2023 until 4pm on 14 January 2023 (three days/two night);
(b) Upon the Mother relocating to Queensland:
(i) in Victoria, in the first week of the 1st term Queensland school holidays in 2023, a total of four nights over six days as follows:
A. from 3.00pm Monday to 3.00pm Wednesday (over three day with two nights); and
B. from 3.00pm Thursday to 3.00pm Saturday (over three days with two nights);
(ii) in Victoria, in the 2nd term Queensland school holidays in 2023, for 4 consecutive days with three nights from 10.00am Monday to 5.00pm Thursday in the first week of such holidays;
(iii) in Victoria, in the 3rd term Queensland school holidays in 2023, for 5 consecutive days with four nights from 10.00am Monday to 5.00pm Friday in the first week of such holidays;
(iv) in Victoria, from 2024, for half of each of the Queensland school 1, 2 and 3 term holidays from 4.00 pm on the first Saturday of those holidays to 10.00 am on the middle Sunday of such holidays;
(v) in Victoria, during the Christmas school holidays as agreed and in default of agreement:
A. for two blocks of five (5) nights in 2023/2024 as follows:
a. from 2pm on 26 December 2023 and concluding at 2pm on 31 December 2023; and
b. from 10am on 4 January 2024 and concluding at 10am on 10 January 2024;
B. In 2024/2025 and each alternate year thereafter, for the second half of the day that falls at the middle of the Christmas school holiday period until the day that falls two business days prior to the first day of the new year school term; and
C. In 2025/2026 and each alternate year thereafter, for the first half commencing in December 2022 on the day after the last day of the school year until the day after the day that falls at the middle of the Christmas school holidays;
(vi) upon the Father complying with paragraph 5 hereof, in Queensland, from Friday after school to 5.00pm Sunday, with the Father to provide not less than fourteen (14) days’ notice in writing to the Mother of his intention to travel to Queensland to spend time with the children pursuant to this clause; and
(vii) at other times as agreed in writing by text message or email or the App.
5. The Father’s time pursuant to paragraph 4 hereof be in the substantial attendance of the Paternal Grandmother, the Paternal Grandfather and/or the Paternal Aunt, Ms C, until such time as the Father has completed a Changing Abusive Behaviours program and has provided a certificate of completion of same to the solicitors for the Mother.
6. Until 2026 or such time as the Father has provided evidence to the Mother of him having his own independent accommodation, all overnight time the Father spends with the children in City B pursuant to these Orders shall occur at the home of the Paternal Grandmother, the Paternal Grandfather and/or the Paternal Aunt, Ms C.
7. The Mother shall remain in the City B region during the time that the children spend with the Father pursuant to paragraphs 4(b)(i) to (iii) and paragraph 4(b)(v)(A) of these Orders.
AND THE COURT ORDERS BY CONSENT THAT:
8. The children communicate with the Father via telephone/video telephone /Skype /Facetime/Social Media/Gaming platform as follows:
(a) Between 5:00pm and 6:00pm each Tuesday and Thursday with the Father to make the calls and the Mother to facilitate the calls;
(b) On the children’s and the Father’s birthdays via telephone from 5:00pm to 6:00pm, with the Father to make the telephone call and the Mother to facilitate the telephone call, if the children are not otherwise spending time with the Father.
(c) At all reasonable times as requested by the children, or either of them, with the Mother to make the calls and the Father to receive the calls.
AND THE COURT ORDERS THAT:
9. Changeover for the Father’s time pursuant to paragraph 4(a) hereof occur at the D Contact Centre in City B.
10. The specific times for changeover pursuant to the visits in paragraph 4(b) take place as agreed between the parties on the condition that the Mother exchange the children’s flight itinerary with the Father within 14 days prior to the commencement of each visit, and in default of agreement as determined by the Mother taking into account available flight times and the burden of travel.
11. For the purposes of changeover for interstate travel, unless agreed otherwise in text message, email or on the App:
(a) The Mother shall be responsible for the cost of the Mother’s and children’s flights to and from Victoria for the first term and third term school holidays in each year;
(b) The Father shall be responsible for the cost of the Mother’s and children’s flights to and from Victoria for the second term school holidays and the Christmas holidays;
(c) Prior to Z reaching five years of age:
(i) The Mother shall accompany the children travelling to and from Victoria for the purposes of the Father’s time with the children and the Mother shall book her flights for the first term and third term holiday travel and the Father book such necessary flights for the Mother (when applicable) and the children for the second term and Christmas holiday travel;
(ii) Each parent promptly inform the other of the travel and flight bookings and such flights be booked and paid for, and the other parent be informed, no less than 14 days prior to all school holidays; and
(iii) changeover shall occur at the D Contact Centre in City B or, in the event that the D Contact Centre cannot facilitate same, at the City B Police Station.
(d) Upon Z reaching five years of age:
(i) The flights booked shall occur, where possible, between 9:00am and 7:00pm on the relevant day with the same payments provisions as prior to Z reaching five years of age;
(ii) The children travel by air, as unaccompanied minors;
(iii) The Father or his nominee known to the children collect and deliver the children from Tullamarine airport in Melbourne;
(iv) The Mother or her nominee known to the children collect and deliver the children from the Brisbane Airport or the City E Airport (subject to flight bookings) in Queensland.
12. The Mother and Father do all acts and things necessary to cause and ensure they are able to communicate via the Talking Parents App (‘the App’), but strictly regarding parenting issues relating to the children in a short, courteous and without whingeing manner.
AND THE COURT ORDERS BY CONSENT THAT:
13. The Father, his servants and agents be and are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the Mother or any member of her household in the presence or hearing of the children or any of them or from permitting any other person so to do;
(b) Telephoning the Mother save for an emergency concerning the children, or any of them; or
(c) Using physical discipline on the children or any of them.
14. For 24 hours immediately prior to the children spending time with the Father and during all such time, the Father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, or exposing the children to any person under the influence of, any legal or illegal drug or substance, save and except for:
(a) Any legal medication prescribed by a registered medical practitioner and taken or used by the Father or his agents strictly in accordance with such prescription; and,
(b) Any over the counter legal mediation or pharmaceutical substance ordinarily sold in major supermarkets or taken by the Father or his agents strictly in accordance with the directions appearing on such medication or pharmaceutical substance; and
(c) The Father not consume alcohol at all during the time the children are with him.
15. The Mother and Father shall:
(a) Keep the other advised, at all times, of their respective email addresses and mobile phone numbers;
(b) Advise the other immediately in the event that the children, or either of them, suffer any serious illness or injury;
(c) Authorise any medical practitioner and/or allied health professional treating the children, or one or more of them, including counsellors or mental health professionals, to communicate with the other in respect of their medical condition/s and/or health requirements;
(d) Authorise all schools/kindergartens at which the children may attend, from time to time to:
(i) Provide to the other parent, at the other parent’s expense, copies of all school reports, school notices and school photographs in relation to the children;
(ii) Allow the school/kindergarten staff to communicate with the other parent, either by telephone, in writing or by personal attendance, in respect to the children’s progress and wellbeing at school/ kindergarten; and,
(iii) Permit the other to attend all school functions and events which parents normally invited to attend save that the Father shall provide the Mother with at least two (2) days prior written notice by email, text message or the App if he intends to attend any such function or event;
subject to any school policy in relation thereto.
16. The Mother, the Father and Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a) The Principal or delegate of the Principal of the school attended from time to time by the children or any of them; and
(b) Any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the Mother or the Father.
17. Within seven (7) days of the date of these Orders, the Mother shall arrange an appointment for the child X with the Independent Children’s Lawyer for the Independent Children’s Lawyer to explain these Orders and their effect to him.
18. That the order of the Court appointing the Independent Children’s Lawyer be discharged upon paragraph 17 being completed.
19. Pursuant to Rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, it is certified that it was reasonable for the parties to engage a lawyer as Counsel.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 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 are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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