FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parker & Leclair [2024] FedCFamC2F 1476
File number(s): MLC 14258 of 2021 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 23 October 2024 Catchwords: FAMILY LAW – PARENTING – child (aged 11) exposed to family violence between parties and subjected to family violence and problematic behaviour by mother – child has lived with father since 2022 and spent professionally supervised time with mother since February 2023 – mother claims her use of family violence and problematic behaviour is a response to family violence by the father and resultant trauma (PTSD) and her neurodivergence is misunderstood – single expert psychologist opinion mother presents with atypical personality traits posing a high risk to child’s emotional wellbeing – consideration of mother’s mental health and parenting capacity – finding mother lacks insight into and has not adequately addressed her problematic behaviour and child would be exposed to unacceptable risk of psychological and physical harm by spending unsupervised time with her – orders made for father to have sole parental responsibility, child to live with father and to spend limited, privately supervised time with the mother – mother’s communication with child to be by letters, cards and gifts only due to history of inappropriate communications Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAAA, 65Y, 67Z, 68B, 68P, 68Q, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.10, 5.01
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 24
Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221
Carter & Wilson (2023) FLC 94–129; [2023] FedCFamC1A 9
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kuebler & Kuebler (2019) FLC 90-434; [1978] FamCA 26
Lainhart & Ellinson (2023) FLC 94–166; [2023] FedCFamC1A 200
Line & Line (1997) FLC 92-729; [1996] FamCA 145
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FAMCAFC 92
Ramzi & Moussa [2022] FedCFamC2F 1473
Division: Division 2 Family Law Number of paragraphs: 327 Date of last submission/s: 31 May 2024 Date of hearing: 5-9 February; 30-31 May 2024 Place: Melbourne Counsel for the applicant Mr Dean Solicitor for the applicant MMH Lawyers Representative for the respondent Self-represented Counsel for the independent children’s lawyer Ms Hutchings Independent children’s lawyer Creative Family Law Solutions ORDERS
MLC 14258 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PARKER
Applicant
AND: MS LECLAIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
23 OCTOBER 2024
THE COURT ORDERS THAT:
Previous parenting orders
1.All previous parenting orders be…
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CaseChat Overview and Summary
The court concluded that Ms Leclair had not adequately addressed her problematic behaviour and lacked insight into its impact on the child. It was found that the child would be exposed to unacceptable risks of psychological and physical harm if unsupervised time with the mother was allowed. Consequently, the court determined that Mr Parker should have sole parental responsibility for X, who would live with him. The child was granted limited, supervised visits with Ms Leclair, with supervision to be provided by the H Contact Centre or an agreed-upon alternative service. Communication between X and Ms Leclair was restricted to letters, cards, and gifts sent through Mr Parker, with Mr Parker having the discretion to withhold any communications or gifts deemed inappropriate. Ms Leclair was also restrained from direct communication with X through any means and from approaching within 100 metres of Mr Parker’s residence and X’s school.
The court made several other orders to ensure the child’s safety and welfare, including provisions for communication between the parents, access to information, and restrictions on discussing court proceedings and changes to living arrangements in front of X. Additionally, the court granted Mr Parker sole authority over X’s passports and citizenship applications, and restrained Ms Leclair from removing X from Australia. Finally, the court ordered that the father facilitate X’s attendance at school counselling and requested the independent children's lawyer to explain the orders to X and provide relevant copies to the school and X’s psychologist or counsellor.
Orders
Orders of the court
MLC 14258 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PARKER
Applicant
AND:
MS LECLAIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
23 OCTOBER 2024
THE COURT ORDERS THAT:
Previous parenting orders
1. All previous parenting orders be and are hereby discharged.
Parental responsibility
2. The applicant (“father”) have sole parental responsibility for the child, X born in 2013 ("X").
3. The father promptly inform the respondent (“mother”) in writing of decisions he makes about major long-term issues in relation to X.
Care arrangements
4. X live with the father.
5. X spend time with the mother as follows:
(a) On the first Saturday of each of February, June, August and October each year;
(b) On the Saturday immediately before X's birthday each year;
(c) On Mother’s Day in each year;
(d) On the Saturday immediately before Christmas (25 December) in each year,
for a period of up to five hours on each occasion with such time to be supervised by H Contact Centre (or such other supervision service as agreed between the mother and father (“the parents” / “the parties”) in writing) ("the Service") at times and locations as directed by the Service, accommodating reasonable requests of the mother as to times and locations as far as practicable to the Service; and
(e) At such further and other times, and on such further and other conditions, as agreed between the parties in writing.
6. For the purposes of order 5:
(a) The costs associated with the Service be paid by the mother, directly to the Service; and
(b) The parties follow all reasonable directions and comply with all reasonable rules and requests of the Service.
7. The father forthwith provide a copy of these orders to the Service.
8. X communicate with the mother as follows:
(a) By the mother sending X letters, cards and gifts, via the father, for new year in her home state, X's birthday, Christmas and Easter;
(b) By letter in any calendar month X does not spend time with the mother or receive communications pursuant to order 8(a); and
(c) At such further and other times, and on such further and other conditions, as agreed between the parties in writing.
9. The father is permitted to view the letters, cards and gifts sent by the mother for X and may withhold any communications or gifts he considers inappropriate for X, in which case he is to inform the mother of his decision to do so.
10. Except as otherwise provided within these orders or as otherwise agreed between the parents in writing, the mother, including by her servants and agents, be restrained from:
(a) Spending time with and communicating with X by any means, including mail, telephone, email, text message or social media;
(b) Approaching within 100 metres of the father's residence; and
(c) Approaching within 100 metres of X's school.
Communication between the parents and access to information
11. The parties communicate with one another about non-urgent matters relating to X's care, welfare and development in writing, by email.
12. The parties communicate about all urgent or emergency matters relating to X by SMS text message, save that the father be at liberty to telephone the mother in the event of an emergency pertaining to X.
13. All communication between the parents be limited in scope to matters concerning X, and both parents be restrained from communicating about any and all other matters, save via a legal representative, family dispute resolution practitioner or mediator, unless otherwise agreed in writing.
14. The parties keep each other informed in writing of:
(a) Their email addresses, postal address and contact telephone numbers, including mobile phone numbers and notify the other at least seven days prior to any change in those contact details where practicable and otherwise, as soon as possible after any change; and
(b) All serious illnesses and/or injuries sustained by X whilst in their respective care requiring hospitalisation or specialist medical attention.
15. The father provide the mother’s contact details to any medical or health professional attended by X, along with a copy of these orders, and authorise those practitioners to contact the mother for the purpose of obtaining information from the mother the practitioners consider would assist in X’s medical and health care IT BEING NOTED this order relates to receiving and providing information only and does not authorise other engagement by the mother with X’s medical and health practitioners unless with the consent of the father.
16. Both parents are authorised to seek and obtain from X's school(s) copies of reports, notices, correspondence, photographs and other like documents parents ordinarily receive in relation to X at the expense of the requesting parent.
Injunctions
17. Each of the parties, by themselves, their servants and agents, are restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their household or family in the presence or hearing of X and from knowingly permitting any other person to do so; and
(b) Discussing these court proceedings in X's presence and/or hearing and from knowingly permitting any other person to do so, save for the independent children’s lawyer pursuant to these orders; and
(c) Allowing X access to any court documents relating to these or any other legal proceedings in which the parents or either of them are involved and from knowingly permitting any other person to do so; and
(d) Allowing X access to written communication between the parents and from knowingly permitting any other person to do so; and
(e) Exposing X to any form of family violence, threats or intimidation and from permitting any other person to do so; and
(f) Discussing with X changes to his living arrangements insofar as the change relates to living with the other parent.
Citizenship, passports and overseas travel
18. The mother deliver any passport she holds for X (including any expired passport) to the father’s solicitor’s office within 14 days of the date of these orders.
Country B passport
19. The father be at liberty to provide a copy of these orders to the Country B Consulate or other relevant Country B government body in support of any application he may make to renew X’s Country B passport.
20. The father hold X's Country B passport.
Australian citizenship and passport
21. The father is authorised to apply for Australian citizenship for X.
22. Pursuant to section 11 of the Australian Passports Act 2005 (Cth), the father is authorised to apply for and receive an Australian passport for X born in 2013 (“X”) and to thereafter renew X’s passport as required, without first obtaining the consent of the mother.
23. For the purposes of order 22, the father be permitted to provide a copy of these orders to the Department of Foreign Affairs and Trade.
24. The father hold X's Australian passport.
Overseas travel
25. The mother, MS LECLAIR, born in 1986, including by her servants and/or agents is restrained by injunction from taking or sending or attempting to take or send the child, X born in 2013 (“the child”) from the Commonwealth of Australia,
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watch List for a period of eight (8) years.
26. Upon expiration of the period referred to in order 25 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police ARE REQUESTED to cause the removal of the child’s name from the Family Law Watch List.
27. The father, MR PARKER, be and is hereby permitted to remove the child, X born in 2013, from the Commonwealth of Australia and travel internationally IT BEING NOTED the request in order 25 for the child’s name to be placed on the Family Law Watchlist is not intended to impede the child’s travel with the father.
Counselling for X
28. The father do all such acts and things to facilitate X's attendance upon his school psychologist or counsellor and follow all reasonable directions of X's school psychologist or counsellor.
Independent children’s lawyer
29. Within fourteen days of the date of these orders, the independent children's lawyer IS REQUESTED TO:
(a) Explain these orders to X; and
(b) Provide a copy of these orders to the principal of X’s school; and
(c) Provide a copy of these orders and the family report prepared by Dr K (“the family report”) to the psychologist or counsellor who assists X,
and 30 days thereafter, the appointment of the independent children's lawyer be discharged with the thanks of the court.
Provision of orders, reasons and family report
30. The parties are each authorised to provide a copy of these orders to:
(a) Staff at X's school; and
(b) X's treating medical, dental, and other allied health professionals.
31. The father is authorised to provide these orders and the family report to:
(a) Any general practitioner attended by X; and
(b) To any psychologist and/or counsellor supporting or treating X.
32. The parties are each authorised to provide to any psychologist, psychiatrist and/or counsellor they attend upon for support or treatment:
(a) A copy of the family report; and
(b) A copy of these orders and the related reasons for judgment.
Obligations, consequences of contravention and assistance with orders
33. Pursuant to sections 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 and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Procedural orders
34. All extant applications be dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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