FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADER & RADER (No.4) | [2019] FCCA 2826 |
| Catchwords: FAMILY LAW – Parenting – urgent application by Independent Children's Lawyer supported by mother to move children and parental responsibility from father to maternal grandparents – maternal grandparents joined – psychological risk – reliance on clinical notes of children’s discussions with psychologists and counsellors – application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZL, 60CA, 65AA, 60CC, 60CC(2), 60CC(3), 68Q, 68P(3), 68B |
| Cases cited: Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 |
| Applicant: | MS RADER |
| First Respondent: | MR RADER |
| Second Respondents: | MS HAINES & MR HAINES |
| File Number: | SYC 1641 of 2019 |
| Judgment of: | Judge B. Smith |
| Hearing date: | 13 September 2019 |
| Date of Last Submission: | 13 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahony |
| Solicitors for the Applicant: | Bowral Legal |
| The First Respondent appeared in person: |
| The Second Respondents appeared in person: |
Solicitors for the Independent Children's Lawyer:
| Morton Family Lawyers | Ms Morton |
ORDERS
Until further order, the second respondents have sole parental responsibility, exercised jointly, for decisions concerning the major long-term issues for the children [X] born … 2005 and [Y] born … 2006 but shall not make any non-urgent major long-term decision without consulting with each of the parties first and obtaining an order of the Court.
Until further order, the children live with the second respondents at a residence which allows the children to continue attending their schools.
Until further order, the parties, including the second respondents, and the children engage in family therapy with Ms F and for that purpose, each of the parties shall forthwith contact Ms F to arrange initial appointments and that the costs of this therapy shall be shared equally between the applicant and the first respondent.
Pending further order and pursuant to s.68B of the Family Law Act 1975 (Cth), the applicant and the first respondent be restrained from:
(a)contacting the children;
(b)contacting any psychologist or other employee of Psychologists C;
(c)contacting any of the children’s medical practitioners; and
(d)contacting the children’s schools.
Until further order, the first respondent may despite these orders spend time with the children in accordance with any written recommendation of the family therapist, Ms F and that recommendation may include both time, place and supervision.
Until further order, the applicant may despite any existing family violence order spend time with the children in accordance with any written recommendation of the family therapist, Ms F and that recommendation may include both time, place and supervision.
Until further order, the applicant is restrained from consuming alcohol for a period of twenty-four (24) hours prior to and during any time that the children spend with…
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- AGLC
- Rader & Rader (No.4) [2019] FCCA 2826
- Case
- [2019] FCCA 2826
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the application for the maternal grandparents to assume sole parental responsibility for major long-term issues and for the children to live with them. Further issues included the extent to which the parents should be restrained from contacting the children and their associated professionals, the conditions under which the parents might spend time with the children, and the validity of existing family violence orders in light of the proposed parenting orders. The court also had to consider the implications of its orders on existing family violence orders and the notification requirements to relevant authorities.
Judge B. Smith reasoned that the evidence presented, including clinical notes, supported the urgent need for a change in the children's living arrangements and parental responsibility to ensure their psychological safety. The court applied principles relating to the paramountcy of the children's welfare and best interests, particularly in circumstances involving alleged psychological risk. The court found that the existing family violence order was inconsistent with the proposed parenting orders and, pursuant to s.68Q of the *Family Law Act 1975* (Cth), declared the family violence order invalid to the extent of the inconsistency.
The court ordered that, until further order, the maternal grandparents would have sole parental responsibility for major long-term issues, to be exercised jointly, and that the children would live with them. The parents were significantly restrained from contacting the children and their associated professionals, with any contact to be supervised and guided by a family therapist. The court also made specific orders regarding the father's and mother's time with the children, including conditions on the mother's alcohol consumption, and mandated family therapy. The court further ordered that copies of these orders be provided to the Local Court, the Commissioner of Police, and the Department of Communities and Justice.
Orders
Orders of the court
1.
Until further order, the second respondents have sole parental responsibility, exercised jointly, for decisions concerning the major long-term issues for the children [X] born … 2005 and [Y] born … 2006 but shall not make any non-urgent major long-term decision without consulting with each of the parties first and obtaining an order of the Court.
2.
Until further order, the children live with the second respondents at a residence which allows the children to continue attending their schools.
3.
Until further order, the parties, including the second respondents, and the children engage in family therapy with Ms F and for that purpose, each of the parties shall forthwith contact Ms F to arrange initial appointments and that the costs of this therapy shall be shared equally between the applicant and the first respondent.
4.
Pending further order and pursuant to s.68B of the Family Law Act 1975 (Cth), the applicant and the first respondent be restrained from:
(a) contacting the children;
(b) contacting any psychologist or other employee of Psychologists C;
(c) contacting any of the children’s medical practitioners; and
(d) contacting the children’s schools.
5.
Until further order, the first respondent may despite these orders spend time with the children in accordance with any written recommendation of the family therapist, Ms F and that recommendation may include both time, place and supervision.
6.
Until further order, the applicant may despite any existing family violence order spend time with the children in accordance with any written recommendation of the family therapist, Ms F and that recommendation may include both time, place and supervision.
7.
Until further order, the applicant is restrained from consuming alcohol for a period of twenty-four (24) hours prior to and during any time that the children spend with her.
8.
Until further order, within thirty-five (35) days the second respondents file and serve a response and affidavit.
9.
Until further order, the Court notes that these orders, and in particular Orders 3 and 5, are inconsistent with an existing Family Violence Order namely the ADVO made on 24 July, 2019 at Location L Local Court.
10.
Until further order and pursuant to s.68Q of the Family Law Act 1975 (Cth), to the extent to which these orders are inconsistent with an existing Family Violence Order the Family Violence Order is invalid.
11.
Until further order and pursuant to s.68P(3) of the Family Law Act 1975 (Cth), within seven (7) days the Registry shall provide a copy of these orders to:
(a) the Registrar at Location L Local Court;
(b) the Commissioner of New South Wales Police; and
(c) the Department of Communities’ and Justice.
12.
Until further order, the second respondents are restrained and an injunction hereby issues restraining the second respondents, by themselves, their servants and agents from discussing with the children any aspect of the proceedings other than the orders regarding parental responsibility and with whom the children live.
13.
The application is adjourned to 10 December, 2019 at 9:30am for mention.
14.
Any application in a case or objection to subpoena made returnable by the registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
15.
The oral application made by the first respondent in court today being 13 September, 2019 for immediate stay of these orders pending appeal be dismissed.
16.
The maternal grandparents, MR HAINES and MS HAINES be joined as the second respondents to these proceedings.
17.
The legal representatives for the applicant and the respondent in person have leave to view in the back of court only, for the purposes of the interim hearing today, all documents and material returned to the Court from the following subpoenas:
(a) subpoena number 7 filed by the applicant on 26 June, 2019 addressed to Psychologists C;
(b) subpoena number 8 filed by the applicant on 10 May, 2019 addressed to Medical Centre M;
(c) subpoena number 10 filed by the applicant on 10 May, 2019 addressed to School E; and
(d) subpoena number 26 filed by the applicant on 10 May, 2019 addressed to School D.
NOTATIONS
1.
The Independent Children’s Lawyer shall provide a copy of these orders to Psychologists C, and any medical practitioners that may treat the children from time-to-time, and each child’s school.
2.
Pursuant to s.65DA(2) 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 are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.
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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