FAMILY COURT OF AUSTRALIA
| POINTER & CHEADLE | [2020] FamCA 183 |
| FAMILY LAW – CHILDREN – Where each party seeks competing sole parental responsibility orders – Where the mother seeks orders providing for strict conditions to the child spending overnight time with the father – Where the father and Independent Children’s Lawyer seek that the child live with the father and spend time with the mother one (1) night per fortnight – Where the mother alleges the father is neglectful in his care of the child – Where the mother has refused to make the child available to spend overnight time with the father despite existing court Orders –Where the mother alleges the father has engaged in sexual impropriety – Where the father acknowledges that he has a history of depression and has sought professional assistance – Whether the mother has a history of ignoring medical and therapeutic advice – Whether the mother has exposed the child to emotional dysregulated behaviour –Where the Court finds that there is an unacceptable risk of emotional and psychological harm to the child in the mother’s care – Where the Court finds that the risk can be mitigated or ameliorated by appropriate therapy – Where the Court makes Orders for the child to live with the father and spend time with the mother subject to the mother engaging in appropriate therapy. |
| Family Law Act 1975 (Cth) ss 43(1), 60B(1), 60CA, 60CC, 61DA, 65DAA, 65DAC(2)-(3), 65Y. Evidence Act 1995 (Cth) s 140. |
| A v A (1998) FLC 92-800 The Hon John Fogarty AM, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 |
| APPLICANT: | Mr Pointer |
| RESPONDENT: | Ms Cheadle |
| INDEPENDENT CHILDREN’S LAWYER: | Delaney Lawyers |
| FILE NUMBER: | SYC | 7392 | of | 2013 |
| DATE DELIVERED: | 26 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 17-21 June 2019, 27 June 2019, 4 September 2019, and… |
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- AGLC
- Pointer and Cheadle [2020] FamCA 183
- Case
- [2020] FamCA 183
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary caregiver for the child, the extent of parental responsibility to be allocated, and the specific arrangements for the child's time with each parent. Crucially, the court also had to consider conditions to be imposed on the mother's time with the child, including requirements for mental health treatment and compliance with therapist recommendations, and the consequences of non-compliance. Further issues included communication between the parents regarding the child, geographical restrictions on the mother, and the exchange of information about the child's health and education.
McClelland DCJ ordered that the child live with the father and that the father have sole parental responsibility. The mother's time with the child was made conditional upon her obtaining a Mental Health Care Plan, engaging with a therapist, and complying with treatment recommendations. Failure to comply with these conditions would result in the child spending time with the mother only on alternate weekends, as per a less extensive schedule. The court also issued injunctions restraining the mother from attending within 50 metres of the father's residence and the child's school, except under specific circumstances. Provisions were made for communication between the child and the mother, and for the father to keep the mother informed of significant decisions concerning the child. Both parents were restrained from making derogatory remarks about the other to the child or discussing court proceedings in the child's presence.
Orders
Orders of the court
1.
That other than Order 9, which shall take effect immediately, these Orders will take effect 28 days after the date of these Orders.
2.
That all previous parenting orders in relation to the child, X born … 2012 (“the child”), be discharged.
3.
That child shall live with Mr Pointer (“the father”).
4.
That the father shall have sole parental responsibility for the child.
5.
That, subject to Ms Cheadle’s (“the mother”) compliance with Order 9 herein, the child shall spend time with the mother on each alternate weekend from 9.00 am on Sunday until before school on Monday.
6.
In the event that, within 28 days of the date of these Orders, the mother complies with and continues to comply with Order 9 herein, the child shall spend time with the mother:
(a) During school terms, each alternate week from after school on Friday to the commencement of school the following Wednesday;
(b) From 9.00 am on Mother’s Day until before school on Monday each year if the child is not otherwise with the mother;
(c) During the school holiday periods at the end of Terms 1, 2 and 3 each year, from after school on the last day of term until 5.00 pm on the Friday in Week 1 of the holidays;
(d) During the school holiday period at the end of Term 4 each year:
(i) In even numbered years, from 9.00 am on 24 December until 5.00 pm on 29 December and from 9.00 am on 18 January until 5.00 pm on 23 January; and
(ii) In odd numbered years, from 9.00 am on 28 December until 5.00 pm on 2 January and from 9.00 am on 18 January until 5.00 pm on 23 January; and
(e) At such other times as agreed in writing between the parents.
7.
That the father shall ensure that the child communicates with the mother via telephone or FaceTime and that the privacy of the child is respected when such communication occurs.
(a) On Christmas Day if she is not in the care of the mother; and
(b) At least once per week during school holiday periods if she is not scheduled to spend time with the mother during that week.
8.
For the purposes of Orders 5 or 6, all changeovers on school days shall take place at the child’s school and on non-school days the father shall deliver the child to the mother’s residence at the commencement of the time and the father will collect the child from the mother’s residence at the conclusion of the time, unless otherwise agreed in writing between the parents.
9.
That the mother’s time with the child in accordance with Order 6 is conditional upon the mother’s compliance with the following:
(a) Within 14 days of the date of these orders, the mother is to obtain a Mental Health Care Plan and referral from her general practitioner to a psychologist or psychiatrist (“therapist”) for treatment of her anxiety;
(b) Within 21 days of the date of these orders, the mother is to make an initial appointment with the therapist and advise the father in writing of the name and contact details of the therapist and the date of the appointment;
(c) The mother is to attend the initial appointment and all subsequent appointments in accordance with the therapist’s recommendations until such time as the therapist deems it appropriate for the mother to cease treatment;
(d) The mother is to comply with all reasonable recommendations made by the therapist in relation to her treatment, including taking any prescribed medication or attending any recommended parenting or behaviour management course;
(e) The mother is to provide a copy of the following documents to the therapist prior to or at her initial appointment:
(i) A sealed copy of these Orders;
(ii) Deputy Chief Justice McClelland’s reasons for judgment; and
(iii) Dr B’s reports dated 26 October 2015 and 16 July 2018.
10.
That the mother is to authorise the therapist to provide the father with information limited to the mother’s attendance and compliance with treatment recommendations, if such information is requested by the father.
11.
That in the event that the mother does not comply with Order 9, to be confirmed by the mother sending an email to the Independent Children’s Lawyer at, within 28 days of the date of these Orders, then the child’s time with the mother shall continue in accordance with Order 5 and will not commence in accordance with Order 6.
12.
The Court makes the following injunctions pursuant to s 68B(1)(c)(i) of the Family Law Act 1975 (Cth):
(a) The mother is restrained from coming within 50 metres of the father’s residence at any time, except with the father’s prior consent in writing; and
(b) The mother is restrained from coming within 50 metres of the child’s school at any time except for the purposes of collecting or delivering the child in accordance with these Orders, or at the express written invitation of the school Principal, or with the father’s prior consent in writing.
13.
That each parent is to notify the other in the event that the child suffers a significant illness or injury or is hospitalised whilst in that parent’s care.
14.
That the father is to keep the mother informed of:
(a) Any major long term decisions concerning the child, including decisions in relation to her health and education;
(b) The names and contact details of any specialists providing health or medical treatment to the child; and
(c) The names and contact details of any counsellor, psychologist or psychiatrist providing treatment to the child.
15.
That the mother is hereby authorised to obtain information from any doctor, health practitioner or therapist providing treatment to the child in relation to the child’s progress.
16.
That forthwith upon the making of these Orders and continually thereafter, the father give written authority to X’s school to provide all information, including reports and notices of events and any other details of X’s progress, to the mother and to include the mother’s name on the school records as an emergency contact.
17.
That each parent is hereby restrained from:
(a) Making critical or derogatory remarks about the other parent to or in the presence or hearing of the child; and
(b) Discussing these Court proceedings in the presence of or hearing of the child unless under the guidance of a doctor, counsellor, psychologist, psychiatrist or therapist.
18.
That the father has leave to provide a copy of the following documents to Mr D and any counsellor, psychologist or psychiatrist providing treatment to the child in the future:
(a) A sealed copy of these Orders;
(b) Deputy Chief Justice McClelland’s reasons for judgment; and
(c) Dr B’s reports dated 26 October 2015 and 16 July 2018.
NOTATION:
A. The mother’s communication with and attendance upon the health professionals or therapist or course referred to in Order 9 may be by way of electronic communication, including email, telephone/Facetime or other audio-visual communication.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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