Reid & Burns
[2022] FedCFamC1F 491
•11 July 2022
Federal Circuit and Family Court of Australia (Division 1) First instance
Reid & Burns [2022] FedCFamC1F 491
File number(s): BRC 11736 of 2014 Judgment of: CAREW J Date of judgment: 11 July 2022 Catchwords: FAMILY LAW – CHILDREN – Unacceptable risk – Where an order is made by consent of the parents – Where the independent children’s lawyer concurs Number of paragraphs: 15 Date of hearing: 11 July 2022 Place: Brisbane Counsel for the Applicant: Mr Hanlon Solicitor for the Applicant: Alexander Law Counsel for the Respondent: Mr Coe Solicitor for the Respondent: HCM Legal Counsel for the Independent Children’s Lawyer: Mr Kalimnios Solicitor for the Independent Children’s Lawyer: Queensland Legal Practice ORDER
BRC 11736 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR REID
Applicant
AND: MS BURNS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
11 July 2022
THE COURT ORDERS BY CONSENT:
1.That all previous Orders and Parenting Plans be discharged.
2.That the father shall havesole parental responsibility for the child of the relationship X born in 2012 (hereinafter referred to as “the child”) save that the father shall, prior to making the sole ultimate decision about any issue:
(a)advise the mother in writing of the decision intended to be made;
(b)seek the mother’s written response in relation thereto;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision; and
(d)advise the mother in writing as soon as reasonably practicable of his ultimate decision.
3.That the child shall live with the father.
Exchange of Information
4.That the mother and father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number and notify the other parent at least seven (7) days prior to relocating their residence;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child, and this Order authorises those practitioners to provide the other parent with information that they are able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and this Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
5.That this Order authorises the schools or extra-curricular activity providers attended by the child to give each parent information about the child’s educational progress and other related activities and to supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
6.That the parents authorise, and this Order shall serve as such authority to any treating medical and health practitioners to release the child’s medical information to the mother and father.
7.That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Living Arrangements for the Child
8.That the child shall spend time with the mother:
(a)for a period of twenty-six visits (to be exercised on a fortnightly basis), with such time to be supervised at B Centre for no less than two hours on each occasion, or as such time as the contact centre can facilitate, and in relation to same, the father shall pay all costs associated with the contact centre.
9.That upon the completion of paragraph 8 herein, and unless otherwise agreed between the parents in writing, the child shall spend time with the mother each alternate weekend from 9:00am on Saturday until 3:00pm the following Sunday.
10.That notwithstanding any other provision in this Order, but only upon the completion of paragraph 8 herein, the child shall spend time with her parents on special occasions as follows:
(a)For Christmas Day:
(i)from 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with her father and in odd numbered years with her mother; and
(ii)from 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with her father and in even numbered years with her mother;
(b)On the birthday of the child (with the parent they are not living with on the day):
(i)if a school day, from after school until 6.00pm;
(ii)if a non-school day, from 1.00pm until 6.00pm; and
(iii)with that parent to be responsible to collect and return the child;
(c)with her father on the Father’s Day weekend and in the event that that is a non-contact weekend the father shall forgo the following weekend of time;
(d)with her mother on the Mother’s Day weekend and if that is a non-contact weekend, the mother shall forgo the following weekend of time.
11.That the child be permitted to communicate with her siblings on their birthdays, on Mother’s Day in 2023, on the mother’s birthday in 2022 and on the child’s birthday in 2022 by FaceTime.
12.The child shall be permitted to communicate with her parents on the telephone at such times as a child reasonably requests, and that parent shall facilitate the call.
13.That a parent may telephone the child between the hours of 5:00pm until 5:30pm but only on Tuesday and Thursday unless otherwise agreed and in relation to such communication each parent shall:
(a)Ensure that the child is available to receive the telephone call;
(b)Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;
(c)Ensure that the child has privacy during the conversation.
Collection and Delivery
14.That except as otherwise provided in this Order, and only upon the completion of paragraph 8 herein, the mother shall collect the child from the McDonald’s Restaurant at C Street, Suburb D at the commencement of her time and the father shall collect the child from outside the McDonald’s Restaurant on G Street, H City at the conclusion of the mother’s time and in relation to same:
(a)The parents must collect the child in person;
(b)Each parent shall be punctual in attending the changeover and if there is to be a delay shall send a text message to the other parent; and
(c)Unless otherwise agreed neither parent shall approach the other and shall remain near their cars so as to enable the child to move readily between the vehicles.
15.That each parent shall deliver and return the child’s clothing, school materials and belongings and the child’s clothing shall be returned in a clean condition.
16.That the parents and their associates shall not post any images of the child on any social media platform at any time.
Dispute Resolution
17.That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of this Order, the parents before making any further application to a Court shall:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act1975 (as amended) or by the Commonwealth Attorney- General; or
(b)Participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
NOTATION
A.In consenting to this Order the mother accepts that the father does not pose an unacceptable risk of harm to the child.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reid & Burns is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
X is nine years of age. Her parents have been involved in court proceedings about her since 2015. The proceedings were in the Federal Circuit Court of Australia (as that Court was known until 1 September 2021) until being transferred to this Court in March this year. There had been four attempts to have the matter finalised at trial in the other Court (all adjourned for various reasons) before the matter was transferred to this Court.
X has lived with her father since September 2019, apart from a brief period in September 2020 when her mother withheld her and a recovery order was issued for her return to her father. Since then, X has only seen her mother once, namely, at the Family Report interviews in October 2021, the mother having elected not to see the child. There is some reference in the material to this election having been made because of the requirement for the child’s time with the mother to be supervised.
Notwithstanding that this matter has been listed for a five day trial commencing today, at which the mother’s very serious allegations against the father largely relating to historical family violence could have been tested, the parents ask the Court to make a final parenting order by consent. The signed Minute of Order has the support of the Independent Children’s Lawyer.
Despite the matter having resolved, I still need to be satisfied that the proposed Order is in X’s best interests, although that process is significantly truncated in light of the agreement reached.
The father and mother had a brief relationship that commenced in about 2011 and ended in about 2014. X lived with her mother after separation and spent time with her father, although things did not always go smoothly.
There has been significant involvement by the Department of Children, Youth Justice and Multicultural Affairs, who concluded after investigations in 2019 that the mother was not a parent able to meet the care and protection needs of X at that time. The future risk of significant emotional harm to the child was assessed as arising largely due to the mother’s alleged excessive responses to the child spending time with the father. It was noted by the Department that the child was caught in the middle of a protracted conflict between her parents and that the child would speak negatively about the other parent as a way to please the other parent. It was assessed by the Department that the mother had encouraged this behaviour and that the child required stability and certainty, which was assessed to best lie with the child remaining with the father.
The police have also been involved with the family on a number of occasions and the child has been interviewed four times by police, numerous times by departmental officers and by the Family Report writer on five occasions. There has been concern raised by the Family Report writer and others about the child being exposed to what is termed “systems abuse”.
Since the parents’ separation, the father has had two more children; six year old twins with his partner, Ms E, whom he has been in a relationship with for eight years. The father also has a 12 year old boy who spends alternate weekends with him.
The mother has had three more children since separating from the father. Her other children are aged 4, 3 and 12 months. There is no mention of the fathers of any of these children but, as best I can tell, each of these children have a different father and none of the fathers are mentioned in the mother’s material, so I assume they do not have involvement in their children’s lives.
The father is 31 years of age and works part time as a transporter and his partner works full time as a carer.
The mother is 30 years of age and has an intellectual disability but she works several days each week during school hours as a tradesperson. Extensive practical assistance has been afforded to the mother by outside agencies and the mother has a supportive family.
There have been protection orders in place in the past but there are none currently, the last one having expired some years ago.
I was not taken to any evidence that either the parents or the child are at risk of family violence in the future.
Ms F is a Family Consultant who has prepared four Family Reports in this matter and is in a rather unique position, having observed this family since 2015. In her most recent report, completed in November 2021, Ms F opined that the child loves both her parents but is currently settled and very happy living with her father, Ms E and her twin half siblings. The child was assessed by Ms F as a “happy, well-adjusted young girl” who expressed a desire to continue living with her father but also to have an ongoing relationship with her mother and her other half siblings. Ms F recommended that the child continue to live with the father and spend twelve months supervised time with the mother before commencing to spend a weekend each month with her mother unsupervised. Ms F also suggested that the mother continue to receive ongoing support from community agencies and to attend counselling to address the importance of not exposing the child to her negative views of father. While no mention of that is made of that in the proposed Order, I trust that the mother will take that advice on board.
In the circumstances I am satisfied that the proposed Order meets the child’s best interests.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 11 July 2022
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