Ridgeway & Eastman

[2023] FedCFamC2F 300

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ridgeway & Eastman [2023] FedCFamC2F 300

File number:	DNC 245 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	20 March 2023
Catchwords:	FAMILY LAW- parenting application – where the mother has not appeared and is unrepresented – where the child has been living with the father – where the father is supportive of the child seeing the mother – where the father is solely responsible for the child being able to travel to see the mother – the court makes the orders proposed by the ICL and supported by the father
Division:	Division 2 Family Law
Number of paragraphs:	6
Date of hearing:	1 March 2023
Place:	Darwin
Solicitor for the Applicant:	No appearance
Solicitor for the Respondent:	Self- Represented Litigant
Solicitor for the Independent Children's Lawyer:	Ms Farmer

ORDERS

DNC 245 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS RIDGEWAY

Applicant

AND:

MR EASTMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE YOUNG
Date of order	20 march 2023

THE COURT ORDERS THAT:

1.That the parties have equal shared parental responsibility for X born in 2014 (“the child”).

2.That the parties will make a genuine effort to come to a joint decision about all major long term decisions including:

(a)The child’s education;

(b)The child’s religious and cultural up bringing; and

(c)The child’s health.

3.In the event the parties are unable to reach a joint decision, the Father shall make the final decision and inform the Mother in writing as soon as is reasonably practicable of the decision made.

4.That the child live with the Father.

TIME SPENT

5.Unless otherwise agreed, during school terms and commencing on the first Saturday of each calendar month in each school term (only), the child spend time with the Mother once per calendar month from 10:00am Saturday to 3:00pm Sunday.

6.That during school holidays, the child spend time with the parties as follows:

(a)With the Father for the first half in odd numbered years and the second half in even numbered years; and

(b)With the Mother for the first half in even numbered years and the second half in odd numbered years with changeovers to occur at 10:00am on the Saturday and return changeover to occur at 3:00pm on the Sunday.

7.That Orders 5 and 6 be suspended on the following days of significance and the child shall spent time with the parties as follows:

(a)From 5.00pm Christmas Eve until 12.00noon Christmas Day in odd number years;

(b)From 12.00 Christmas Day until 5.00pm Boxing Day in even number years;

(c)On X’S Birthday as agreed between the parties in writing and failing agreement, if his birthday is on a school day then from that following Saturday 10am to 3pm.

(d)On the Mother’s birthday, if it is a school day from after school Saturday 10am to 3pm.

(e)On Y’s Birthday from the weekend thereafter Saturday 10am until 3pm.

(f)On Z’s Birthday from the weekend thereafter Saturday 10am until 3 pm.

(g)On W’s Birthday from Saturday 10am to 3pm.

(h)On Mother’s Day from 5.00 pm the day before until 3pm on Mother’s Day

(i)With the Father on Father’s day commencing 5:30pm on the Friday prior and concluding at 5:30pm on Sunday Father’s Day.

CHANGEOVERS

8.That for the purpose of changeovers, all changeovers at the home of the maternal aunt, Ms B failing which at the maternal grandmother’s house or Aunty Ms C.

COMMUNICATION

9.That the child shall communicate with the Mother each Monday and Wednesday at 6:00pm and the following Orders shall apply:

(a)The call shall occur by Facetime / WhatsApp / Messenger or any other electronic medium as agreed between the parties; and

(b)The Mother shall instigate the call to the child’s mobile phone; and

(c)The Father shall answer the call (and return to call if missed) and provide the child privacy during the call.

10.That the parties shall:

(a)Communicate by text or email except in the event of an emergency when communication will be by telephone;

(b)Ensure all communication between them is limited to discussing care arrangements or welfare of the children;

(c)Ensure communication remains polite and respectful.

11.That a copy of these Orders authorises the child’s schools and medical practitioners to provide to each of the parties:

(a)Copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the children;

(b)Copy of medical reports including any referrals, information regarding any medical condition suffered by either of the child, including treatment and any other information or material concerning the health and wellbeing of the child.

INJUNCTIONS

12.That without admission the parties be restrained and injunctions be granted restraining each of the parties from the following:

(a)Exposing the child to any excessive alcohol or any illicit substance use by either of the parties;

(b)permitting the child to spend time with or in any way be present near or have any form of contact with Mr D and in the event that communication between the child and Mr D is likely to occur, the child shall immediately be returned to the Father;

(c)That both parents refrain from consuming alcohol to excess or any illicit substances whilst the child is spending time with either of the parties;

(d)That each parent be restrained from denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the child and each parent remove the child from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family;

(e)Removed the child from school unless he is unwell;

(f)From discussing the court proceedings with the child or allowing the child to read or view any court documents;

(g)From physically disciplining or restraining the child or permitting a third party to do so;

(h)From exposing the child to abuse (including verbal abuse) or family violence and that the parents will take all measures necessary to remove the child from any act of family violence should such circumstances arise;

(i)From posting to any social media account negative or derogatory comments including photos or information in relation the child and/or the parents or these proceedings; and

(j)From using the child as a conduit to pass messages to the other parent;

PROCEDURAL ORDERS

13.The Independent Children's Lawyer shall explain these Orders to the child.

14.The parties shall share equally in the costs of the Independent Children's Lawyer as assessed by the Northern Territory Legal Aid Commission.

15.The Independent Children's Lawyer is to be discharged upon completion of her obligations pursuant to these Orders.

16.Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist 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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Ridgeway & Eastman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

Judge Young

1. This is a parenting application concerning X who is almost 9 years old.  X lives with his father at Town E, which is several hundred kilometres from Darwin, and presently spends time with his mother on alternate weekends.  The mother has not appeared today nor is she represented.  The history, in summary terms, is that X formerly lived with his mother but was taken into care in March 2021 by the child welfare authorities and placed with his father because of a variety of matters but one of the most significant was the child’s exposure to family violence in the mother’s household as a result of her relationship with a Mr D.  The child has been living with his father since then and, as I say, spending time with his mother.  There appear to be no concerns about X spending time with his father.  His father is employed.  His father is doing, by all reports, a good job caring for X and providing for X’s physical and emotional needs.

2. The father, Mr Eastman, is perfectly willing to encourage a relationship between X and his mother as his compliance with the interim orders which have been somewhat onerous in the time-spending arrangements demonstrate, and there is no reason that X’s regular time with his mother should not continue subject, of course, to there being no indication that X is exposed to a risk of harm, psychological or otherwise, particularly through exposure to family violence.

3. As we have not heard from the mother, there has been no material filed and she has not appeared, it has not been possible to make any assessment in relation to whether or not her relationship with Mr D continues or, indeed, whether the mother’s involvement with illicit drugs is an issue, noting, of course, that there has been some indication that she has been charged with possession of a commercial quantity of a schedule 2 substance.

4. The mother’s failure to give any explanation about those matters really underlines the reasonableness of concerns about that issue. Having regard to all of the matters in Part VII of the Family Law Act, I am satisfied that section 60CC(2)(b) is engaged but, because of the mother’s history and a lack of information about the mother, I am satisfied that under the orders proposed by the independent children’s lawyer and supported by the father that those concerns are addressed. In relation to (a), I am satisfied that the proposed orders also recognise the benefit to X of having a relationship with his mother, subject to the matters that I have referred to. I also have regard to the other matters in subsection (3), but I do not propose to discuss those individually.

5. As there is agreement between Mr Eastman and the independent children’s lawyer about these orders, I propose to make those orders.  I should say something about Order 5, the time spending order.  As I have alluded to, Mr Eastman has said that the alternate weekend regime at the moment is onerous for him because he works several hundred kilometres away from Darwin, and he has been solely responsible for travel arrangements for X when he visits his mother in Darwin.  I accept what Mr Eastman says in his affidavit, that that is difficult and has interfered with his employment because he has had to take leave and so on. 

6. I am satisfied that, in the circumstances, the proposal for a weekend, or at least an overnight, once per calendar month is reasonable, particularly in the absence of the mother being able to contribute to the travel, either practically or financially.

I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Young.

Associate:

Dated:       20 March 2023