FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pieters & Westmore (No 3) [2023] FedCFamC2F 1028
File number: DGC 2398 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 August 2023 Catchwords: FAMILY LAW – final parenting orders – 7 day hearing after listed for 3 days – substantial history of litigation – multiple expert reports in evidence – parent withholding for over one year – whether parent is engaging in resist/refuse pattern – where allegations of abuse made and not pursued – whether one or both parents support a relationship with the other parent – period of no time with withholding parent Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAA, 65DAC
Cases cited: Adamson & Adamson (2014) FLC 93-622
Bondelmonte & Bondelmonte & Anor [2017] HCA 8
Fox v Percy (2003) 214 CLR 118
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Pieters & Westmore (No 2) [2023] FedCFamC2F 701
Division: Division 2 Family Law Number of paragraphs: 519 Date of hearing: 5, 6, 7, 9, 14, 15, 16 June 2023 Place: Melbourne Counsel for the Applicant: Ms J. Elleray Solicitor for the Applicant: Pentana Stanton Lawyers Senior Counsel for the Respondent: Ms E. Mallett SC Solicitor for the Respondent: Resolve Conflict Lawyers Counsel for the Independent Children's Lawyer: Ms V. Morkos Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
DGC 2398 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PIETERS
Applicant
AND: MS WESTMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 AUGUST 2023
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
THE COURT ORDERS THAT:
1.Mr Pieters (‘the Father’) have sole parental responsibility for X born in 2013 (‘X’).
2.Prior to the Father making any long term decision about X’s welfare, save in emergency, he do all acts and things to consult the Mother by text message in a timely manner and, if her reply is made in a timely manner, take that into account in making his decision and then inform her of his decision by text message as soon as practical.
3.X live with the Father and he is authorised to re-enrol her at H School.
4.Ms Westmore (‘the Mother’) do all acts and things to deliver X to the Father at 10:00 am on Wednesday 16 August 2023 inside the foyer of the Suburb J McDonalds on the corner of K Street and L Street in Suburb J.
5.After complying with the above order to deliver X to the Father’s care, the Mother not spend any time or communicate with X until Friday 20 October 2023.
6.X’s engagement with a psychologist
7.The Father engage X with Ms M psychologist and/or such other psychologist as nominated by the Independent Children’s Lawyer (‘the Psychologist’) to assist with the transition of X back into the Father’s care.
8.The Father…
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- Pieters & Westmore (No 3) [2023] FedCFamC2F 1028
- Case
- [2023] FedCFamC2F 1028
- Decision Date
CaseChat Overview and Summary
The court found that the mother had engaged in a resist/refuse pattern and had withheld the child for over one year. The court found that the mother had made allegations of abuse but did not pursue them. The court found that the father supported a relationship with the mother and that the mother had expressed an interest in maintaining a relationship with the father. The court found that the child had been without contact with the mother for a period of no time.
The court made orders for sole parental responsibility for the father, with specific arrangements for the child to live with the father and for the mother to have contact. The orders included provisions for the child’s engagement with a psychologist, for the father to consult the mother on decisions affecting the child’s welfare, and for the mother to deliver the child to the father on a specified date and time. The court also made orders for the mother to be restrained from arranging or facilitating any therapy for the child and from spending time with the child other than in accordance with the orders. The court made detailed orders for the child’s time to be spent with each parent during school terms, long summer holidays, and special occasions such as Christmas and Mother’s and Father’s Day. The court also made orders for communication between the parents, for the provision of information, and for restraints on the parents’ conduct towards each other and the child.
The court made orders for the discharge of the Independent Children’s Lawyer and for the particulars of the obligations and consequences of the orders to be set out in a Fact Sheet. The court made orders for the mother and father to facilitate a telephone call to the other parent when the child is in their care on Sundays, with specific provisions for the timing and duration of the call and for the privacy of the child during the call. The court made orders for the mother and father to have access to the child’s medical and dental records and to attend parent-teacher interviews and other school functions. The court made orders for the mother and father to inform each other of any serious injury or illness suffered or sustained by the child while in their care and to comply with any medications or specialist advice provided in writing to either or any of them. The court made orders for the mother and father to be restrained from abusing, insulting, belittling, rebuking, or otherwise denigrating the child or each other in the presence or hearing of the child, and from permitting any other person from doing so. The court made orders for the mother and father to be restrained from physically chastising, disciplining, or verbally abusing the child, from discussing these proceedings with or in the presence or hearing of the child, from exposing the child to any form of violence, threats, or intimidation, and from permitting any other person from doing so. The court made orders for the mother and father to be restrained from removing the child from the child’s school without the written consent of the other parent or an order of the Court.
Orders
Orders of the court
DGC 2398 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PIETERS
Applicant
AND:
MS WESTMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 AUGUST 2023
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
THE COURT ORDERS THAT:
1. Mr Pieters (‘the Father’) have sole parental responsibility for X born in 2013 (‘X’).
2. Prior to the Father making any long term decision about X’s welfare, save in emergency, he do all acts and things to consult the Mother by text message in a timely manner and, if her reply is made in a timely manner, take that into account in making his decision and then inform her of his decision by text message as soon as practical.
3. X live with the Father and he is authorised to re-enrol her at H School.
4. Ms Westmore (‘the Mother’) do all acts and things to deliver X to the Father at 10:00 am on Wednesday 16 August 2023 inside the foyer of the Suburb J McDonalds on the corner of K Street and L Street in Suburb J.
5. After complying with the above order to deliver X to the Father’s care, the Mother not spend any time or communicate with X until Friday 20 October 2023.
6. X’s engagement with a psychologist
7. The Father engage X with Ms M psychologist and/or such other psychologist as nominated by the Independent Children’s Lawyer (‘the Psychologist’) to assist with the transition of X back into the Father’s care.
8. The Father provide to X’s therapist the following:
(a) These orders;
(b) The reasons for these orders delivered this day (‘the reasons’);
(c) The Family Report of Ms C dated 9 April 2021;
(d) The report of Dr G dated 3 October 2022;
(e) Any other reports or documents referred to in the reasons and requested by the Psychologist.
9. The Mother be and is restrained from arranging or facilitating any therapy for X with any therapist, psychologist, counsellor or medical practitioner.
10. The Mother be and is restrained from spending time with X other than in accordance with these orders and/or facilitating or allowing any other person to spend time with X other than in accordance with these orders AND in the event X comes to be in the care of any person other than in accordance with these orders, the Mother do all acts and things to forthwith notify the Father of the whereabouts of herself and of X AND cause and ensure X is returned to her Father’s care.
11. In the event that either the Mother or the Father attend, by telephone, electronically or in person upon Child Protection or any similar organisation, or the Police including SOCIT to report or discuss any aspect of X’s care or welfare, and/or any therapist for themselves, at the first report, contact or session, the Mother and the Father provide such person or organisation with a copy of these orders, and if requested provide a copy of these reasons.
12. That, commencing Friday 20 October 2023, X spend time with the Mother as follows:
During school term: the ordinary weekend
(a) During school term, commencing Friday 20 October 2023, and on each alternate weekend thereafter, from Friday afternoon from the end of the school day or at the Mother’s election in writing no less than seven (7) days beforehand at 6:00 pm that day, until the following Sunday evening at 6:00pm (‘the ordinary weekend’); and
(b) On the ordinary weekend, in the event the Friday is a non-school day, from the end of the school day on the preceding Thursday and in the event that Monday is a non-school day, until the following Monday at 6:00 pm; and
During school term: the longer weekend
(c) During school term, and not before Friday 20 October 2023, in the event that;
(i) The Mother has suitable secure accommodation, rented or purchased, for herself and X, within a radius of 30 kilometres and no more than 30 minutes travel by motorcar from H School (‘the accommodation’) and keeps the Father advised of the accommodation; and
(ii) The Mother has informed the Father of the details of the address and provided a photograph of the exterior of the accommodation from the street and such documents, either rental agreement or licence or contract of sale, showing the nature of the tenure, no less than 14 days beforehand; and
(iii) The Mother has informed the Father of her intention to do so no less than 14 days beforehand (‘the notice of the longer weekend’); then
(iv) Commencing 14 days after the notice of the longer weekend, X spend time with the Mother each alternate weekend from Friday afternoon from after the end of the school day until the following Monday morning before school (‘the longer weekend’); and
(v) Commencing on the next Wednesday after the longer weekend, from Wednesday afternoon from after the end of the school day, and in the event that Wednesday is a non-school day from 9:00 am, until the following Friday before school, and in the event that Friday is a non-school day until 9:00 am.
13. The time the child spends with the Mother shall be suspended during the school term and long summer school holidays and shall resume after each of the said holidays in the same cycle as if the holiday periods had not intervened.
Long summer holidays
14. Commencing from the gazetted Victorian summer school holidays in 2023 (i.e. December 2023/January 2024) and each long summer school holiday thereafter, the child spend half of such period with each parent, as agreed between the parents in writing, text message or email, and failing agreement, on a week-about basis (i.e. for seven (7) consecutive nights), as follows:
(a) in 2023/24 and each alternate year thereafter with the Father, to commence from the conclusion of the last day of the school year in 2023 for seven (7) consecutive nights ending at 3:30pm and each alternate week thereafter until the conclusion of the summer holiday;
(b) in 2024/2025 and each alternate year thereafter with the Mother, to commence from the conclusion of the last day of the school year in 2024) for seven (7) consecutive nights ending at 3:30pm and each alternate week thereafter until the conclusion of the summer holiday; and
(c) the parent who has the last week prior to the commencement of the new school year shall have their time conclude at the commencement of the new school year notwithstanding that such time may not amount to seven nights.
School term holidays
15. Commencing from the first gazetted Victorian school term holiday in 2024 and each school term holiday thereafter the child spend half of such period with each parent as agreed between the parents in writing, and failing agreement:
(a) with the mother:
(i) the first half in even numbered years from the conclusion of the last day of school term until 3:30pm on the day calculated to be halfway through the said holiday;
(ii) the second half in odd numbered years from 3:30pm on the day calculated to be halfway through the said holiday until the commencement of the next school term; and
(b) if the total number of nights are not even then the parent who is exercising the first half shall have the additional night.
Christmas Day
16. Notwithstanding any period the X spends time with each parent pursuant to the Long Summer Holiday provisions of these orders X spend time with each parent for Christmas and Boxing Days, as follows:
(a) in 2023 and each alternate year thereafter:
(i) with the Father from 3:00pm on 24 December until 3.00pm on 25 December;
(ii) with the Mother from 3:00pm on 25 December until 3.00pm on 26 December; and
(b) in 2024 and each alternate year thereafter:
(i) with the Mother from 3:00pm on 24 December until 3.00pm on 25 December; and
(ii) with the Father from 3:00pm on 25 December until 3.00pm on 26 December;
Mother’s Day/Father’s Day
17. Notwithstanding any period X spends time with each parent pursuant to these orders, X spend time with each parent on Mother’s Day and Father’s Day, as follows:
(a) With the Father from 5:00pm on Father’s Day Eve until before school the following Monday, and if the Monday is a non-school day until 9:00 am; and
(b) With the Mother from 5:00pm on Mother’s Day Eve until before school the following Monday, and if the Monday is a non-school day until 9:00 am.
Not at school changeovers
18. For purposes of changeover, when not occurring at the child’s school, changeover take place at McDonald’s on the corner of K Street and L Street in Suburb J.
Phone calls
19. Unless a Sunday is a changeover day, the Mother and the Father facilitate a telephone call to the other parent when the child is in their care on Sundays, with such call to be made by the parent who does not have the child in their care to the other parent’s mobile at 7:00pm and for such purpose:
(a) the communication shall not exceed beyond 7.30pm
(b) the parent receiving the other parent’s call must ensure that:
(i) the child is available;
(ii) their mobile telephone is turned on with sufficient charge and reception to receive the call; and
(c) the child be given privacy when communicating with the other parent.
20. The Mother and Father shall be authorised pursuant to this Order and if required they shall do all acts and things and sign all documents and authorities necessary, to allow each of them to:
(a) receive information and have access to the X’s medical and dental records and any registered medical/health professional(s) upon whom X may attend from time to time when in their care;
(b) receive from any school attended by the X, all notices, reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents by schools and the expenses, if any, of such items received shall be borne by the receiving parent.
(c) attend upon X’s school upon any invitation issued on behalf of her school for any function including but not limited to parent-teacher interviews or otherwise for the bona fide purpose of enquiry as to the child’s welfare, including educational progress.
(d) attend any extra-curricular or sporting activity X may be involved in through the school.
Provision of information
21. The Mother and Father shall:
(a) inform each other by either telephone, text message or email of any serious injury or illness suffered or sustained by X while in their care as soon as practicable following the onset of the said injury or illness and provide each other with the particulars of:
(i) any treatment or medication required or received by the X; and
(ii) the name and address of any treating medical/health professional involved with X;
(b) inform each other by either telephone, text message or email of any health professional that has been involved with the child while the child has been in their care and be authorised pursuant to this Order to receive from any health professional involved with the child information, advice or directions concerning the X’s health and to discuss all matters concerning the child’s health with the health professional.
(c) comply with any medications or specialist advice that is provided in writing to either or any of them;
(d) ensure compliance with any prescriptions or prescribed medications provided for X and ensure that it is provided to the other parent including at changeovers as may be required.
(e) inform each other of a change to their residential address or contact details and inform the other parent at least 14 days before any change.
22. The Mother and Father be at liberty to contact each other by telephone as follows:
(a) at a time as may be agreed to in writing by way of text message by one parent proposing a telephone call and the other advising their agreement; or
(b) in case of an emergency concerning the child or the parent when the child is in that parent’s care.
Other restraints
23. The Mother and Father be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the child or each other in the presence or hearing of the child, and from permitting any other person from doing so;
(b) physically chastising, disciplining or verbally abusing the child;
(c) discussing these proceedings with or in the presence or hearing of the child and from permitting any other person from doing so save that the Father be and is permitted to discuss these orders with X, including in the counselling for X with the psychologist;
(d) exposing the child to any form of violence, threats or intimidation and from permitting any other person from doing so; and
(e) removing the child from the child’s school without:
(i) the written consent of the other parent; or
(ii) an order of the Court.
Discharge of ICL
24. The Independent Children’s Lawyer be discharged 29 days after these orders.
Obligations these orders create
25. Pursuant to Sections 62B and 65DA 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 and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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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