FEDERAL CIRCUIT COURT OF AUSTRALIA
| PELSTON & PELSTON | [2020] FCCA 3528 |
| Catchwords: FAMILY LAW – Interim parenting – Mother seeking to relocate Children’s residence - best interests of Children - proposed relocation Order made and other related interim parenting Orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Beaton & Beaton [2020] FamCAFC 297 Cimorelli & Wenlack [2020] FamCAFC 58 Eaby & Speelman [2015] FamCAFC 104 Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 Saif & Saif [2020] FamCA 119 Salah & Salah [2016] FamCAFC 100 |
| Applicant: | MR PELSTON |
| Respondent: | MS PELSTON |
| File Number: | MLC 14640 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 26 November 2020 |
| Date of Last Submission: | 26 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms Carthew, City G Legal Resolution Services |
| Counsel for the Independent Children's Lawyer: | Mr Radich of Counsel |
ORDERS PENDING FURTHER ORDER
Order 2 and 3 within Exhibit A of the Courts Orders of 16 May 2019 be suspended until further Order.
X (‘X’) born in 2010 and Y (‘Y’) born in 2013 (“the Children”) shall spend time and communicate with the Father as follows:
(a)During school term on each alternate weekend from 6 PM Friday until 5 PM Sunday with such time to be suspended during school holiday periods;
(b)Christmas New Year School Holidays commencing 2020:
(i)Alternate weeks during the Christmas New Year school holiday period at times to follow the normal commencement of the Father's weekend on the Friday to the following Friday 10 AM;
(c)On Father's Day weekend in each year from 10 AM Saturday until 5 PM Sunday provided that the Father's time shall be suspended on the Mother's Day weekend from 10 AM Saturday until 5 PM Sunday;
(d)For Christmas as follows:
(i)In 2020 on Christmas Eve from 3 PM until 10:30 AM Christmas Day;
(ii)In 2021 and in each alternate year from 10.30 AM Christmas Day until 3 PM Boxing Day with the Children to be in the Mother's care from 3 PM Christmas Eve until 10.30 AM Christmas Day;
(iii)In 2022 and each alternate year from 3 PM Christmas Eve until 10.30 AM Christmas Day with the Children to be in the Mother's care from 10.30 AM Christmas Day until 3 PM Boxing Day;
(e)Half of all school term holiday periods (other than the Christmas New Year school holiday period), at times to be agreed, but failing agreement, the 1st half of such school term holiday periods in odd years, and the second half in even numbered years;
(f)The Children’s pupil free days shall be spent with the Father;
(g)Victorian public holidays that fall on a Monday or a Friday shall be spent by the Children with the Father;
(h)In addition to the above time to be spent by the Children with the Father during school holidays, the Father shall have 2 additional nights with the Children…
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- PELSTON & PELSTON [2020] FCCA 3528
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- [2020] FCCA 3528
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CaseChat Overview and Summary
The central legal issues before the court were how to best promote the welfare and interests of the children, X (born 2010) and Y (born 2013), in light of the proposed relocation by the mother. This involved determining appropriate interim time arrangements, communication protocols between the parents, and specific orders regarding the children's schooling, medical care, and the parents' conduct towards each other and the children.
The court's reasoning led to a comprehensive set of interim orders designed to balance the children's relationship with both parents while permitting the mother's relocation under specific conditions. These orders detailed an alternating weekend schedule for the father during school terms, divided holiday periods, and specific arrangements for public holidays and pupil-free days. The court also imposed strict injunctions on the parents regarding communication, the discussion of proceedings with the children, and denigration of the other parent. Furthermore, the mother was permitted to relocate to a specified area, provided she gave the father written notice and confirmed school enrolment. The father was also ordered to undergo a psychiatric assessment, and both parents were directed to provide medical reports concerning the father's health. Communication was to be primarily through the "Our Family Wizard" app, with specific exceptions.
Orders
Orders of the court
ORDERS PENDING FURTHER ORDER
1. Order 2 and 3 within Exhibit A of the Courts Orders of 16 May 2019 be suspended until further Order.
2. X (‘X’) born in 2010 and Y (‘Y’) born in 2013 (“the Children”) shall spend time and communicate with the Father as follows:
2. (a) During school term on each alternate weekend from 6 PM Friday until 5 PM Sunday with such time to be suspended during school holiday periods;
2. (b) Christmas New Year School Holidays commencing 2020:
2. (i) Alternate weeks during the Christmas New Year school holiday period at times to follow the normal commencement of the Father's weekend on the Friday to the following Friday 10 AM;
2. (c) On Father's Day weekend in each year from 10 AM Saturday until 5 PM Sunday provided that the Father's time shall be suspended on the Mother's Day weekend from 10 AM Saturday until 5 PM Sunday;
2. (d) For Christmas as follows:
2. (i) In 2020 on Christmas Eve from 3 PM until 10:30 AM Christmas Day;
2. (ii) In 2021 and in each alternate year from 10.30 AM Christmas Day until 3 PM Boxing Day with the Children to be in the Mother's care from 3 PM Christmas Eve until 10.30 AM Christmas Day;
2. (iii) In 2022 and each alternate year from 3 PM Christmas Eve until 10.30 AM Christmas Day with the Children to be in the Mother's care from 10.30 AM Christmas Day until 3 PM Boxing Day;
2. (e) Half of all school term holiday periods (other than the Christmas New Year school holiday period), at times to be agreed, but failing agreement, the 1st half of such school term holiday periods in odd years, and the second half in even numbered years;
2. (f) The Children’s pupil free days shall be spent with the Father;
2. (g) Victorian public holidays that fall on a Monday or a Friday shall be spent by the Children with the Father;
2. (h) In addition to the above time to be spent by the Children with the Father during school holidays, the Father shall have 2 additional nights with the Children each school term holiday period, with the dates of such additional nights to be agreed upon between the parties in writing;
2. (i) Such further time as agreed between the parties.
3. The parties agree for the purposes of communication that neither parent will block the other parent's mobile phone number.
4. The parties agree to keep all communications between them civil and related to Children's matters only.
5. The parties, by their servants and/or servants be and are hereby restrained from having the Children attend upon any psychologist and/or counsellor save in the event of prior written agreement between the parents.
6. The parties agree to keep each other informed at all times of their current residential address and contact telephone number and notify the other within 48 hours of any change to the same.
7. The parties agree that they will each notify each other immediately in the event of any medical emergency or of any significant medical illness or injury that may affect the Children whilst in their care including providing the other parent with details of any treating medical professional and authorise such professional to discuss the Child's condition with the other parent.
8. The parties each keep the other informed at all times of any significant medical injury or illness affecting the Children when in the care of each of them including providing the other parent with details of any doctor or hospital that the Children may attend upon along with details of any treatment administered.
9. The parties agree that the provisions of Orders 7 and 8, do not apply to trivial matters such as a cold or minor illness.
10. The parties agree that they may exercise their own discretion in deciding whether or not the Children attend birthday parties, sporting activities or any other extracurricular activity if the Children are experiencing a cold or minor illness.
11. Both parties are permitted to attend and participate in all usual parent/Children activities and extracurricular activity to which the parents are normally invited or expected to attend (even if such activities occur outside of their scheduled time with the Children).
12. Both parties are permitted to discuss all matters pertaining to the Children's education, health and well-being with their school and medical and like practitioners.
13. Changeovers shall occur, unless otherwise agreed, at the front of the Mother’s residence at the commencement of the Father’s time with the Children, and with the Mother collecting the Children from the Father’s residence at the conclusion of the Father’s time with the Children.
14. The Mother shall be permitted to relocate to the City B/Town H area with the Children provided:
14. (a) she gives the Father at least one month’s written notice of her intention to do so and provides the Father with the residential address and confirms the school enrolment of the Children in City B; and;
14. (b) The Mother shall not relocate before the end of the 2020 school year;
15. The Mother is permitted to enrol the Children at C School provided that the Father is also listed as a contact person with the school.
16. The Father is to communicate with the Children only by telephone or Skype at times as agreed between the parents in writing, or failing agreement two times per week for up to 30 minutes each Monday and Wednesday between 5:30 pm and 6:30 pm with the Father to place the call to the Mother’s mobile telephone, and the Mother may remain in the vicinity of the Children while communication takes place and shall end the communication in the event adult or inappropriate topics are being discussed.
17. The parents to ensure they seek the Children be linked in with the Chaplin/Wellbeing Officer at the new School and ask the school to liaise with Ms D, Chaplin from E School.
18. The Father to attend for a Psychiatric Assessment by a Psychiatrist nominated by the ICL such assessment to include:
18. (a) whether the Father has a diagnosed mental illness or psychological condition and if so, what is the nature of the illness or condition;
18. (b) what treatment and/or medication is recommended;
18. (c) whether the Psychiatrist, if able to express a view, considers the Father’s capacity to parent is impacted and if so how;
18. (d) the Father be responsible for the costs of the assessment and to file the Psychiatric Report on Affidavit and serve the Report on the parties as soon as available;
18. (e) each party to provide the Psychiatrist with all documents filed on their behalf in these proceedings; and
18. (f) the ICL provide the Psychiatrist with all Orders of the Court, the Family Report of Ms F dated the 25 April 2019 and the s67Z Response from DHHS.
19. The Father do all acts and things and be responsible for any applicable fees to obtain a Report from his treating medical health practitioner and/or his treating mental health practitioner detailing his current medical and mental health state, including any diagnosis, treatment and medication that may be prescribed, and the Father’s compliance with such treatment and medication regime, and:
19. (a) file and serve such reports on Affidavit within 30 days of these Orders being made; and
19. (b) provide such reports to the psychiatrist as set out in paragraph 18.
20. The Mother, the Father and their servants and/agents are hereby restrained by injunction from:
20. (a) discussing these proceedings in person, or by any form of communication, with or in the presence or hearing of the Children, or allowing any other person to do so;
20. (b) showing the Children any documents, letters or emails relating to the proceeding or any adult issues;
20. (c) using the Children, or either of them, as a messenger to convey messages between the parents;
20. (d) denigrating, criticising, belittling, abusing and harassing the other parent in presence of or within the Hearing of the Children, or either of them, or allowing any other person to do so; or
20. (e) publishing on the internet or any other social media about the other parent or the respective family members.
21. Save for emergencies, the parents shall communicate to each other only about parenting matters via “Our Family Wizard” App to be installed by each parent on their mobile telephone at their own expense.
22. The parties have liberty to apply at short notice.
23. Certify for advocacy.
24. These proceedings are placed in the list of matters awaiting a final Hearing in the City G Circuit of this Court for May 2021.
IT IS NOTED that publication of this judgment under the pseudonym Pelston & Pelston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
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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