FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Porter & Porter (No 3) [2024] FedCFamC1F 633
File number(s): SYC 4014 of 2012 Judgment of: CURRAN J Date of judgment: 24 September 2024 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where mother sought orders for change of residence – Where the mother sought orders for the child to live with her – Where father sought orders for child to live with and spend time with each parent in accordance with her wishes – Where child is currently living with the father despite orders previously made for child to live with mother – Where mother alleges child is at risk of neglect in father’s care – Where concerns that the child has been self-harming – Consideration of child’s views – Where child expressed wishes for no court orders – Orders made for ongoing therapeutic support for child – Orders made for specific issues report to be expanded to cover issue of child’s schooling – Orders made for the child to live with, spend time with and communicate with each parent in accordance with her wishes Legislation: Family Law Act 1975 (Cth) pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61CA, 61C, 61D, 64B, 69ZL
United Nations Convention on the Rights of the Child (1989)
Cases cited: Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-296; [2006] FamCA 958
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
Division: Division 1 First Instance Number of paragraphs: 142 Date of hearing: 20 September 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Brickwood Solicitor for the Respondent: Gannon Family Law Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
SYC 4014 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PORTER
Applicant
AND: MR PORTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
24 SEPTEMBER 2024
BY CONSENT THE COURT ORDERS THAT:
1.Each parent is restrained from the following:
(a)Contacting or communicating with Ms DQ unless requested to do so in writing by Ms DQ.
(b)Contacting or communicating with DR Family Services unless requested by the service to do.
(c)To issue any subpoena to Ms DQ Psychologist or DS Psychologists to give evidence or for the records without leave of the Court.
(d)To show or to discuss any evidence, correspondence, conversations concerning the proceedings orders, reports or information whatsoever about the parenting mattes in the presence or hearing of D.
2.The parents will use their best endeavours to ensure that D participates in and attends the DR Family Services, and attend any appointment arranged.
PENDING FURTHER ORDER THE COURT ORDERS THAT:
3.Orders 3-13 of the orders made by the Honourable Justice Watts dated 6 December 2018 are suspended.
4.The child, D…
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CaseChat Overview and Summary
The court considered the child's views and the allegations of neglect and self-harm. It was noted that the child had expressed a wish for no court orders regarding her residence. The court also considered the evidence of the child's treating psychologist, who recommended ongoing therapeutic support for the child. The court determined that the child should live with, spend time with, and communicate with each parent in accordance with her wishes. It also ordered that the specific issues report be expanded to cover the issue of the child's schooling, including her views about what school she wishes to attend. The court further ordered that the child's treating psychologist be provided with a copy of the report of Ms DT dated 20 December 2022.
The court made orders that the parents use their best endeavours to ensure that the child participates in and attends the DR Family Services, and attend any appointment arranged. It also ordered that the parents work with the child's treating psychologist to support her in a return to school program and engage with any further programs recommended by the psychologist. The court suspended certain previous orders made by the court in 2018. The court dismissed the mother's and father's applications otherwise. The form of the order is subject to the entry in the court's records and may be subject to review or variation.
The court's decision in Porter & Porter (No 3) highlights the importance of considering a child's views and wishes in parenting disputes. The court recognised the child's expressed wish for no court orders regarding her residence and ordered that she live with, spend time with, and communicate with each parent in accordance with her wishes. The court also emphasised the importance of therapeutic support for the child and expanding the specific issues report to cover the issue of her schooling. The court's orders demonstrate a commitment to working with the child's treating psychologist to support her in a return to school program and engage with any further programs recommended by the psychologist. The court's decision also highlights the importance of considering allegations of neglect and self-harm in parenting disputes.
Orders
Orders of the court
SYC 4014 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS PORTER
Applicant
AND:
MR PORTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
24 SEPTEMBER 2024
BY CONSENT THE COURT ORDERS THAT:
1. Each parent is restrained from the following:
(a) Contacting or communicating with Ms DQ unless requested to do so in writing by Ms DQ.
(b) Contacting or communicating with DR Family Services unless requested by the service to do.
(c) To issue any subpoena to Ms DQ Psychologist or DS Psychologists to give evidence or for the records without leave of the Court.
(d) To show or to discuss any evidence, correspondence, conversations concerning the proceedings orders, reports or information whatsoever about the parenting mattes in the presence or hearing of D.
2. The parents will use their best endeavours to ensure that D participates in and attends the DR Family Services, and attend any appointment arranged.
PENDING FURTHER ORDER THE COURT ORDERS THAT:
3. Orders 3-13 of the orders made by the Honourable Justice Watts dated 6 December 2018 are suspended.
4. The child, D born 2010, shall live with, spend time with and communicate with each parent in accordance with her wishes.
5. The Specific Issues report ordered by the Honourable Justice Boyle on 27 August 2024 be expanded to consider the issue of D’s school attendance, including her views about what school she wishes to attend.
6. The Independent Children’s Lawyer is granted leave to provide a copy of the report of Ms DT dated 20 December 2022 to the child’s treating psychologist, Ms DQ.
7. The application of the mother is otherwise dismissed.
8. The application of the father is otherwise dismissed.
THE COURT NOTES THAT:
A. The parties intend to work with Ms DQ to support D to engage in a return to school program.
B. The parties will use their best endeavours to support D in engaging with any further programs as recommended by Ms DQ to support D in her return to school, or other therapeutic supports as recommended by Ms DQ from time to time.
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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