FEDERAL CIRCUIT COURT OF AUSTRALIA
| OSTER & HOULI | [2015] FCCA 398 |
| Catchwords: FAMILY LAW – Parenting – young child being treated for separation anxiety – mother being treated for anxiety – parenting capacity – family violence – father’s alcohol use – father only had supervised time up until hearing. |
| Legislation: Federal Circuit Court Rules 2001, r.15.28 Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 |
| L & T (1999) 25 Fam LR 590 Jacks & Samson [2008] FamCAFC 173 Nash & Reis [2013] FMCAfam 11 Scott & Kent [2013] FCCA 127 Lennon & Lennon [2011] FamCA 571 |
| Applicant: | MS OSTER |
| Respondent: | MS HOULI |
| File Number: | ADC 3108 of 2013 |
| Judgment of: | Judge Harland |
| Hearing dates: | 1, 2, 3, 4 & 5 December 2014 |
| Date of Last Submission: | 5 February 2015 |
| Delivered at: | Darwin |
| Delivered on: | 25 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ross |
| Solicitors for the Applicant: | Voumard Lawyers |
| Counsel for the Respondent: | Mr Bowler |
| Solicitors for the Respondent: | Angela Ferdinandy Solicitor |
| Counsel for the Independent Children's Lawyer: | Mr Hemsley |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission Noarlunga |
ORDERS
Parental responsibility
The parties shall have equal shared parental responsibility for major issues concerning the child [X], born [omitted] 2012, care, welfare and development, subject to Order 2.
Until 30 June 2016 the mother have sole parental responsibility for the child’s health and education provided that the mother:
(a)notify the father of any proposed decision relating to the long term care and welfare of the child, including but not limited to:
(i)proposed decisions about which schools the child shall attend;
(ii)proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child; and ensure that such notification is given to the father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;
(iii)take into consideration any views expressed by the father in respect of such proposed decisions.
From 1 July 2016 the parents shall have equal shared parental responsibility for the child’s education and health.
Live with and spend time arrangements
That the child lives with the mother.
That the child spend time with the father as agreed and failing agreement, as follows:
(a)On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 2.00pm with such occasions to be nominated by the father to the mother during the months of February and March 2015;
(b)On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 4.00pm with such occasions to be nominated by the father to the mother for the months of April, May and June 2015;
(c)On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 6.00pm with…
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- Oster and Houli [2015] FCCA 398
- Case
- [2015] FCCA 398
- Decision Date
CaseChat Overview and Summary
The court was required to determine issues of parental responsibility for major decisions concerning the child's health and education, as well as the specific arrangements for the child to spend time with each parent. Further issues included the location and method of handovers, the involvement of therapists and counsellors for both the child and the parents, and the imposition of injunctions relating to counselling and substance use. The court also considered communication protocols between the parents regarding the child's well-being and travel.
Judge Harland made orders for equal shared parental responsibility for major issues concerning the child, subject to specific temporary provisions for the mother to have sole responsibility for the child's health and education until a specified date, provided she notified and considered the father's views. From a later date, equal shared parental responsibility was to apply to health and education. The child was ordered to live with the mother, with detailed provisions for the child to spend time with the father, gradually increasing in duration and including overnight stays. Specific arrangements were also made for school holidays and extra-curricular activities. Handovers were to occur at a children's contact service or police station for some arrangements, and at a specified fast-food outlet or as otherwise agreed for others. The orders also mandated therapy for the child, with the Independent Children's Lawyer to nominate a therapist if the parents could not agree. Both parents were ordered to attend therapy, with the mother to attend upon a Ms W and the father to attend an anger management course and therapy related to family violence, alcohol dependence, and impulse control. Injunctions were granted restraining the mother from engaging the child in further counselling without the father's consent and restraining the father from consuming alcohol or illicit substances prior to or during time spent with the child. Communication protocols were established, requiring immediate notification of serious incidents and authorising each parent to receive information from the child's health professionals and school.
Orders
Orders of the court
Parental responsibility
1.
The parties shall have equal shared parental responsibility for major issues concerning the child [X], born [omitted] 2012, care, welfare and development, subject to Order 2.
2.
Until 30 June 2016 the mother have sole parental responsibility for the child’s health and education provided that the mother:
(a) notify the father of any proposed decision relating to the long term care and welfare of the child, including but not limited to:
(i) proposed decisions about which schools the child shall attend;
(ii) proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child; and ensure that such notification is given to the father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;
(iii) take into consideration any views expressed by the father in respect of such proposed decisions.
3.
From 1 July 2016 the parents shall have equal shared parental responsibility for the child’s education and health.
Live with and spend time arrangements
4.
That the child lives with the mother.
5.
That the child spend time with the father as agreed and failing agreement, as follows:
(a) On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 2.00pm with such occasions to be nominated by the father to the mother during the months of February and March 2015;
(b) On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 4.00pm with such occasions to be nominated by the father to the mother for the months of April, May and June 2015;
(c) On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 6.00pm with such occasions to be nominated by the father to the mother for the months of July and August 2015;
(d) From 1 September 2015 on one occasion each week from 10.00am on one day until 4.00pm on the following day, such days to be nominated by the father to the mother;
(e) In anticipation of the child commencing overnight time with the father from 1 September 2015 both parties shall use their best endeavours to ensure that wherever possible, from 1 July 2015, the father’s time with [X] is taken on two successive days;
(f) As and from 1 July 2015 the father shall be at liberty to spend time with [X] outside of the metropolitan area and/or at [L] at the election of the father provided that the father shall only take [X] to [L] on one occasion in any week;
(g) Order 3(f) herein shall continue upon [X] commencing kindergarten/school provided that in any time that [X] spends with the father, he shall ensure [X]’s attendance at kindergarten/school; and
(h) From the time [X] commences school (or kindergarten) if he is attending 5 days a week during school terms the father shall spend time with [X] on his rostered days off on two weekends per month from after school Friday until 5pm Sunday.
6.
That from the time [X] commences school until [X] commences Year 2 [X] will spend time with the parents during school holidays as follows:
(a) With the father for the first half of the short school holidays and every second week of the Christmas school holidays commencing on the first week of Christmas school holidays.
(b) With the mother for the second half of the short school holidays and the second week of the Christmas school holidays commencing in the second week.
7.
From the time [X] commences Year 2 of school the parties spend time with [X] during school holidays as follows:
(a) With the father for the first half of all school holidays in odd numbered years and the second half of all school holidays in even numbered years;
(b) With the mother for the second half of all school holidays in odd numbered years and the first half of all school holidays in even numbered years.
8.
Each party is entitled to attend any extra-curricular, sporting or other activities in which the child engages and at which a parent would ordinarily attend.
Handovers
9.
That handovers in respect to the time the child spends with the father in accordance with Orders 5(a) and (b) herein occur at the [M] Children’s Contact Service and if that service is not available at the [M] police station.
10.
That handovers in respect to the time the father spends with the child in accordance with Orders 5(d) to (h) and 6 shall be at Hungry Jacks [omitted] or otherwise as agreed.
Therapy
11.
That the parties arrange for the child to attend a therapist as agreed or failing agreement as nominated by the Independent Children’s Lawyer NOTING the parties have made an appointment for the child to see [name omitted].
12.
That within 14 days the Independent Children’s Lawyer provide a copy of these Orders and reasons for judgment to the child’s therapist.
13.
By consent the mother attend upon Ms W for therapy, on a weekly or other basis and for such duration as Ms W recommends.
14.
By consent the father will attend an anger management course and attend upon a therapist in relation to family violence, alcohol dependence and impulse control, with such attendance to be at his sole expense.
15.
The parties shall provide a copy of these Orders and reasons for judgment to their therapists within 14 days.
Injunctions
16.
The mother be restrained and an injunction is hereby granted restraining her from engaging the child in further counselling with
Ms O or any other counsellor or therapist without the prior written consent of the father.
17.
By consent the father be restrained and an injunction granted restraining him from consuming alcohol or illicit substances 24 hours prior to or during all periods of time spent by the father with the child.
Communication
18.
That each party do inform the other forthwith by SMS message to the other’s mobile phone in the event of any serious accident, injury or illness suffered by the child and of all and any serious medical or other treatment received by the said child.
19.
That each party do authorise the other to receive any and all information from any treating doctor, health professional, therapist or counsellor upon whom the child attends from time to time and to permit the other to receive any or all information from the child’s school as to their academic and general education progress and information relating to extra-curricular, sporting or other activities in which they may engage.
20.
That each party do provide to the other access to medical, dental and health professional reports in respect of the child and keep the other informed at all times, by way of email, of the names and addresses of all health professionals consulted by the child.
21.
That each party advise the other of any intention to take the child out of South Australia and provide to the other an itinerary and particulars of the place and person whom they will be staying out of the state 7 days prior to the proposed departure date.
Other orders
22.
That upon compliance with Order 12 the Independent Children’s Lawyer is discharged.
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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