FEDERAL CIRCUIT COURT OF AUSTRALIA
| OSTLER & FEENEY | [2018] FCCA 226 |
| Catchwords: FAMILY LAW – Parenting – family violence – mental health issues – whether there is an unacceptable risk to the children if they spend time with the father – best interests – supervised time ordered. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CG, 65DAC, 65Y, 68B |
| Cases cited: A & A (1998) FLC 92-800 Blanchv Blanch and Crawford (1999) FLC 92-837 |
| Applicant: | MS OSTLER |
| Respondent: | MR FEENEY |
| File Number: | HBC 597 of 2015 |
| Judgment of: | Judge Baker |
| Hearing dates: | 24 – 26 August 2016, 15 – 17 March 2017, |
| Date of Last Submission: | 25 October 2017 |
| Delivered at: | Hobart |
| Delivered on: | 7 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mooney of Counsel |
| Solicitors for the Applicant: | Women’s Legal Service |
| Counsel for the Respondent: | Mr Feeney in Person |
| Solicitors for the Respondent: | N/A |
| Counsel for the Independent Children's Lawyer: | Ms Ryan of Counsel |
ORDERS
The applicant mother MS OSTLER ‘the mother’ have sole parental responsibility for X born (omitted) 2002 ‘X’, Y born (omitted) 2004, ‘Y’ and Z born (omitted) 2009, ‘Z’ (‘the children’).
The children live with the mother.
The mother will hereby inform the father, as soon as is practical, of any major decisions made regarding the children’s health, welfare and/or education.
X spend time and communicate with the father, at X’s sole initiation, in such manner and at such times as are in accordance with X’s wishes.
Otherwise than as provided in Order 4, the father is restrained from initiating to spend time with and communicate with X or requesting any other person to make such attempts on his behalf.
Each party contact the Hobart Children’s Contact Centre (‘the Contact Centre’) within 30 days of the date of these orders and arrange an appointment for an assessment for suitability for Y and Z to spend time with the father at the Contact Centre, and:
(a)Attend the assessment;
(b)Comply with any appointments made by the Contact Centre;
(c)Comply with all rules of the Contact Centre; and
(d)Comply with all reasonable requests or directions of staff of the Contact Centre.
Y and Z spend time and communicate with the father as follows:
(a)At and supervised by the Hobart Children’s Contact Centre (‘the Contact Centre’) as directed by the Contact Centre and as available, and on condition that within 30 days of the date of these orders, the father attend on the Contact Centre to complete any necessary documents and preliminary interviews.
Otherwise that as provided in Order 7, the father is restrained from initiating to…
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- Ostler and Feeney [2018] FCCA 226
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- [2018] FCCA 226
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CaseChat Overview and Summary
The primary legal issues before the court were the determination of parental responsibility, the establishment of living arrangements for the children, and the terms under which the father would spend time with and communicate with the children. The court also had to consider orders to ensure the safety and welfare of the children and the mother, including restraining orders against the father. Further issues included the release of the children's passports and permission for the mother to travel internationally with the children.
Judge Baker ordered that the mother have sole parental responsibility for X, Y, and Z, and that the children live with her. The father was restrained from initiating contact with X, with X to spend time and communicate with the father solely at X's initiation. For Y and Z, time spent with the father was to be supervised by the Hobart Children’s Contact Centre, subject to the father completing necessary preliminary steps. The father was also restrained from initiating contact with Y and Z otherwise. Significant restraining orders were made against the father, prohibiting him from approaching within specified distances of the mother and children's homes, schools, and other locations. The court also made orders regarding communication between the parties, the provision of school reports, and the release of the children's passports to the mother, who was permitted to travel internationally with them under specific notice requirements.
Orders
Orders of the court
1.
The applicant mother MS OSTLER ‘the mother’ have sole parental responsibility for X born (omitted) 2002 ‘X’, Y born (omitted) 2004, ‘Y’ and Z born (omitted) 2009, ‘Z’ (‘the children’).
2.
The children live with the mother.
3.
The mother will hereby inform the father, as soon as is practical, of any major decisions made regarding the children’s health, welfare and/or education.
4.
X spend time and communicate with the father, at X’s sole initiation, in such manner and at such times as are in accordance with X’s wishes.
5.
Otherwise than as provided in Order 4, the father is restrained from initiating to spend time with and communicate with X or requesting any other person to make such attempts on his behalf.
6.
Each party contact the Hobart Children’s Contact Centre (‘the Contact Centre’) within 30 days of the date of these orders and arrange an appointment for an assessment for suitability for Y and Z to spend time with the father at the Contact Centre, and:
(a) Attend the assessment;
(b) Comply with any appointments made by the Contact Centre;
(c) Comply with all rules of the Contact Centre; and
(d) Comply with all reasonable requests or directions of staff of the Contact Centre.
7.
Y and Z spend time and communicate with the father as follows:
(a) At and supervised by the Hobart Children’s Contact Centre (‘the Contact Centre’) as directed by the Contact Centre and as available, and on condition that within 30 days of the date of these orders, the father attend on the Contact Centre to complete any necessary documents and preliminary interviews.
8.
Otherwise that as provided in Order 7, the father is restrained from initiating to spend time with or communicate with Y and Z or requesting any other person to do so.
9.
Pursuant to Section 68B of the Family Law Act 1975, the father is restrained from:-
(a) going within 200 metres of any access road, path, or driveway to the home or place where the mother, X, Y or Z are or generally living or staying;
(b) not loiter within 100 metres of any school where the children attend, visit or are enrolled;
(c) going within 100 metres of any other place where the mother and/or the children may be present.
10.
Neither party will demean, abuse, or belittle the other party, their respective partners or members of their family, nor will they allow the children to remain in the presence of any third party doing so.
11.
Neither party will use obscene language in the presence or hearing of the children.
12.
The father is at liberty to request the school(s) at which the children are enrolled provide him with a copy of each of the children’s school reports.
13.
The parties will confirm their postal addresses within seven days of the date of these orders by the father sending an email to the mother’s solicitors with that information and the mother’s solicitors sending an email the father with the mother’s information AND within 14 days of any change being made to the parties’ postal addresses they will inform the other party of the change by writing to the other party’s postal address provided.
14.
Should any mail sent to the father be returned to the mother, the mother is not obliged to send any further mail to the father until he provides his new postal address to her.
15.
Leave is hereby given to the mother to provide a copy of these orders to any school staff and/or school authority, child protection authority, medical and para-medical staff involved in the children’s care or sporting club in which the children are involved.
16.
The parties have leave to provide a copy of this Judgment, the report of Mr M and these orders to the children’s (omitted) counsellor and any future treating psychologists the children or either of the parents are referred to.
17.
The Independent Children’s Lawyer is requested to provide a copy of these Orders to the principal of (omitted) School.
18.
The passports of the children X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2009 (currently held in the Registry of the Federal Circuit Court of Australia pursuant to Order 2 made on 25 October 2017) be released to the mother.
19.
The mother is permitted to take the children X born (omitted) 2009, Y born (omitted) 2004 and Z born (omitted) 2009 from the Commonwealth of Australia for the purpose of a visit to (country omitted) or to any other country which is signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The mother shall give the father not less than four weeks’ written notice of such travel, prior to her departure, and provide him with a return flight itinerary. In the case of a family emergency, the mother shall provide the father with at least 48 hours’ written notice, prior to departure.
THE COURT NOTES THAT:
A. Australia is the habitual residence of the children X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2009.
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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