ROMILLY & KLIMA
[2019] FCCA 3789
•24 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROMILLY & KLIMA | [2019] FCCA 3789 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of children – orders made |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 67U, 67V, 68B. |
| Cases cited: Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCA 240 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MS ROMILLY |
| Respondent: | MR KLIMA |
| File Number: | PAC 6211 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 19 December 2019 |
| Date of Last Submission: | 19 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 24 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Gardiner |
| Solicitors for the Respondent: | Ms Tomisetti |
ORDERS PENDING FURTHER ORDER
Live With
That until further Order, [X] shall live with the Father.
Spend Time
That [X] spend time with the Mother as follows:
2.1.Each Saturday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.2.Each Tuesday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.3.Each Thursday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.4.On Christmas Day 2019 for 3 hours at a time agreed between the parties, and failing agreement between 8am and 11am.
That the time [X] spends with the Mother must be supervised by the Paternal Grandmother.
That the solicitors for the Father shall provide to the Court an undertaking by the Paternal Grandmother prior to the first occasion of supervised time.
That the Father facilitate FaceTime and/or telephone communication between the Mother and [X] each day between 6pm and 7pm.
Drug and Alcohol Testing
That until further order, the Mother submit to urinalysis and hair follicle tests for the detection of alcohol and drugs randomly, not being more often than twice per month for urinalysis or once in every three months for hair follicle tests.
For the purpose of hair follicle tests:
7.1.The Mother shall not cut her hair shorter than 3 centimetres until the date specified in the preceding paragraph of this Order.
7.2.The tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.
7.3.That the Mother provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Father’s lawyers and to the Mother’s lawyers immediately upon its completion.
7.4.Each test shall be for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine, chronic alcohol use and any other drugs of abuse.
7.5.The Mother pay the cost of such tests (and the referral).
7.6.In the event of a positive test or any breach of this Order by the Mother, the Mother’s time with [X] under this order is suspended until further order, each party in that event having liberty to apply at short notice.
Miscellaneous
The parties are restrained from denigrating the other party to the child and the parties must use their best endeavours to ensure that no other person denigrates the other party to the child.
That the Father keep the Mother advised in relation to all medical and health care practitioners and specialists that the Child is to attend upon from time to time in a timeframe such that the Mother is able to attend at any appointments made for the Child.
10. That the Mother be at liberty to contact all medical and health care practitioners and specialists that the child may attend upon from time to time so as to enable her to obtain information pertaining to the Child’s health.
11. That the Father do all acts and sign all documents necessary to ensure that the Mother is specifically authorised to contact, speak with and obtain information from any medical and health care practitioners and specialists that the Child may attend upon from time to time.
12. That the parties shall notify each other immediately or at least within one (6) hours of any medical emergency involving the Child.
13. That whilst the Child is in each party’s respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other properly informed of any required treatment or medication required in relation to the Child and the parties shall ensure the proper administration of such medication and treatments is performed by them.
Procedural Orders
14. Pursuant to Rule 15A.05 of the Federal Circuit Court Rules2001, the Parties have leave to issue more than five (5) Subpoena.
15. Pursuant to Section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed for the child [X] born … 2018 ("[X]").
16. Pursuant to section 62G(2) of the Family Law Act 1975 the parties attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report;
17. The Family Report to deal with the following matters:
17.1.The benefit to the child of a meaningful relationship with each parent.
17.2.The capacity of each parent to protect the child from harm.
17.3.The capacity of each parent to promote the psychological, emotional and educational wellbeing of the child.
17.4.The insight of each parent into the children’s needs.
17.5.The attitude of each parent to the responsibilities of parenthood.
17.6.Any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes.
17.7.Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
18. The parties send copies of all of their Court documents to the Family Report Writer within 7 days of being requested to do so by the Family Report Writer.
19. The Family Consultant has leave to view all material produced under subpoena and released for inspection.
20. The Family Consultant has leave to view all material filed in the proceedings before or after the release of the Family Report.
Injunctions
21. Pursuant to section 68B of the Family Law Act 1975, that the Mother be restrained by injunction from allowing [X] to be in the presence or company of the mother’s de facto partner, Mr A ("Mr A").
22. Pending further order, whilst the child is in the primary care of the father, the father shall not yell or swear at the child; he shall not exercise any physical punishment upon the child; and he shall live in the same residence as the paternal grandmother.
23. Pending further order, whilst the child remains in the primary care of the father, the father shall not be affected by any illicit drug, and nor shall he be affected by alcohol such that he has a blood alcohol concentration in excess of 0.05 grams of alcohol in 100 mL of blood.
24. The proceedings are adjourned for mention to 13 February 2020 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Romilly & Klima is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6211 of 2019
| MS ROMILLY |
Applicant
And
| MR KLIMA |
Respondent
REASONS FOR JUDGMENT
These Reasons relate to the mother’s application for a Recovery Order in relation to the child [X] born … 2018. The Court heard the application, opposed by the father, held on 19 December 2019.
Material relied upon
The mother relied upon her Initiating Application filed 13 December 2019; her Notice of Risk filed 13 December 2019; and her Affidavit filed 12 December 2019.
The father relied upon his Case Outline; his Response filed 18 December 2019; his Affidavit filed 18 December 2019; and the Affidavit of the paternal grandmother filed 18 December 2019.
There were certain documentary exhibits in evidence: Exhibit A being a copy of a letter from Legal Aid NSW, solicitors acting for the mother, dated 22 November 2019 addressed to the father; and Exhibit B being New South Wales Police Force documents produced to the Court pursuant to a section 69ZW order made by the Court.
Agreed facts unless otherwise stated
The mother is 25 years of age. The mother works on a casual basis in healthcare. The father is aged 24 years. He works as a tradesman. The paternal grandmother is aged 44 years, and the father now lives with her.
The parties commenced cohabitation in 2017. They separated in October 2019 and lived under the one roof until 9 November 2019.
During the parties’ relationship the mother’s child from a previous relationship, [C], born … 2014, also lived with the parties.
The parties had an argument at the family home on 9 November 2019. The mother asserts, through her solicitors (see Exhibit A), that following this argument the mother was involved in a car accident and was hospitalised briefly for assessment before being discharged. She asserts that the father vacated the family home prior to the mother returning that evening. The mother asserts that she was diagnosed with situational anxiety “which is now being treated by her GP”. The mother asserts that since this date the child has resided with the father and the paternal grandmother. The mother asserts that she has not spent time with the child since this date.
The above letter, Exhibit A, states, on behalf of the mother, “(The mother) has some concerns about the current living arrangements for [X], primarily that he has been denied any meaningful relationship. Given his very young age, and that (the mother) has been his primary carer since birth, she is concerned that his separation from her for such an extensive period is not in his best interests. Additionally she has concerns that [X] has been separated from his brother with whom he has a close attachment….For the reasons outlined above, it is (the mother’s) position that it is in [X]’s best interests to be returned to live with her. She certainly does not want to prevent you from having a meaningful relationship with [X].”
The above letter, Exhibit A, on behalf the mother, proposes interim parenting arrangements providing that the child be returned to live with the mother; that provided the father continues to reside with the paternal grandmother, the child spend time with the father in a two-week cycle for effectively five nights per fortnight; and that changeovers occur at Location D between the mother and the paternal grandmother.”
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In the context of s60CC, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
In relation to Recovery Orders, section 67U of the Act provides that in proceedings for a Recovery Order, the Court may, subject to section 67V, make such recovery order as it thinks proper. Section 67V provides that in deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Meaningful relationship primary consideration
The child would appear to have a meaningful relationship with both parents and would benefit from a continuance of those relationships provided it is safe for him to do so.
The mother asserts that she has been the children’s primary carer at least during the parties’ relationship.
Should the child, at this very early interim stage, remain in the father’s primary care, and spend time with the mother as proposed by the father (daytime time each Tuesday, Thursday, Saturday, and Christmas Day, on three hours each occasion, with such time to be supervised by the paternal grandmother) there is a reasonable prospect that the child’s meaningful relationship with the mother can be maintained.
Need to protect primary consideration
On the material before the Court, there is an unacceptable risk of harm posed to the child in being returned to the mother’s primary care.
The Court is concerned that there is a significant suggestion on the material before the Court that the mother is a regular user of the illicit drug marijuana (and other illicit drugs) and that she is adversely affected from the use of such illicit drugs when she is caring for the child. The Court is concerned that the mother is residing with her friend Mr A who is also a regular user of illicit drugs.
Further, the Court is concerned, on the material before the Court, that there is a significant suggestion that the mother has inadequately treated mental health issues (anxiety and depression). There is a significant suggestion, on the material before the Court, that she attempted to commit suicide (or at least attempted to cause herself serious physical harm) shortly after the argument with the father on 9 November 2019 by deliberately driving her motor vehicle into a power pole. It would appear that the mother suffered an injury to her face in that collision, with an ambulance and police attending the crash scene, and the mother being scheduled under section 22.
The Exhibit B documents from NSW Police, in relation to the above accident on 9 November 2019, state, inter alia, “(the mother and the father) became involved in a verbal argument over what custody arrangements will be for their child upon final separation. (The mother) has become highly distressed and left the loc in her vehicle where she was involved in a MVA a short time later. Upon police arrival for the MVA, police were made aware of the DV incident. Police spoke with both parties and the witness separately and provided the above version of events. While speaking with the (mother) she said, “I wanted to die. I just wanted to drive off a cliff and end it all.” The (mother) was highly distressed and visibly upset. Ambulance attended and the (mother) was scheduled under a section 22… (The mother) advised police she suffers from depression and anxiety. The (mother) was scheduled under section 22…. (The mother) states she has spent time in hospital under mental health previously.
The Exhibit B documents referred to a Police entry on 12 November 2019 which states that the police received a phone call from the mother on this date. The mother had stated in relation to the incident on 9 November 2019, that the father had attempted to stop her from driving the vehicle on Saturday night due to self-harm threats made and wanted police to know “that he grabbed her wrist in an attempt to stop her entering the vehicle”.
Later, on 12 November 2019, Exhibit B documents referred to the police recording telephone conversations with the mother and father. The mother had contacted the Police at this time to state that she had received a text message from the father on this day. The Police state that the text message was simply the father advising the mother that he was going to attend the location after work to collect his belongings and requested the mother not be at the location. The Police state that the mother was highly emotional again, crying and up-and-down with her emotions. The mother showed Police bruising to her wrist and arm and stated this occurred on Saturday as a result of the father attempting to stop her getting into the vehicle and hurting herself. The mother believes Police should be aware of this and enquired about an ADVO. Police explained to the mother it was reasonable for the father to grab her and stop her from attempting to enter the vehicle as he was concerned about her state and what she was going to do. The mother stated the father also pushed her to stop her entering the vehicle. (The Police) advised the action taken from the father was reasonable to stop the mother leaving the location and self-harming (which she eventually did). Police again reiterated this to the mother who agreed with Police that the father was only trying to “stop me from leaving and doing something stupid.”
The Police then contacted the father by telephone. The father again stated to the police that he was attempting to stop the mother from entering the vehicle and leaving because she was stating she wanted to die. He stated he saw the mother attempt to close the vehicle door to prevent the mother from entering the vehicle. The Police state that while speaking to Police, the mother was extremely emotional again and continued to cry and tell police that everything was “foggy and she can’t think straight”. The mother told Police she had not had any thoughts of self-harm since Saturday.
The Court’s concerns as to the mother’s inadequately treated mental health are heightened by the mother’s denials that she attempted to harm herself on 9 November 2019 in relation to her car accident. In the mother’s Affidavit (see paragraphs 36 and 37) she states that the father was now alleging that she purposely ran into a power pole in an attempt to commit suicide. The mother states, “I say that this is completely untrue. I do not have any suicidal ideations. I admit that when the Police came to me at the scene of the accident I said words to the effect of “I’m surprised I am alive” however I meant this in reference to the fact that it was quite a traumatic accident and the abuse I had suffered at the hands of (the father) prior to me driving away. I fully believe that it was due to the abuse suffered that I wasn’t focused on the road.”
The Exhibit B documents from NSW police, in relation to the mother’s above friend Mr A, refer to this person being observed by Police in September 2015 being in possession of a large quantity of prescription medication with the person’s face being very pale, sunken eyes and pupils pinpoint. This person made admissions as to smoking cannabis.
Exhibit B documents referred to Mr A, born 30 October 1993, being spoken to by the Police on 20 July 2019. This person was the driver of a motor vehicle pulled over by the Police. This person admitted to the police had previously driven “like a dickhead”. The Police conducted a roadside breath test which indicated a positive result. This person openly admitted to Police that he was a recreational user of cocaine, and had used the drug the previous weekend. The breath analysis result returned a result of .108 g of alcohol per 210 L of breath. He was charged with the offence of drive with mid-range PCA, and a driving offence.
In relation to the mother’s marijuana use, the Court’s concerns are heightened by reason of the mother stating in her Affidavit that she had failed to report to the Police the full details of “the incident of violence” that had occurred on 9 November 2019, “as I was concerned that if (the father) knew I had made a report he would tell my parents about my marijuana use and would remove [X] from my care as he had threatened this in the past.”
In relation to the mother’s marijuana use, the Court notes the mother’s assertions that she admits that she used to use marijuana as a coping mechanism to help her deal with the stress and trauma of the father’s alleged abuse. The Court notes the mother’s assertion that she smoked marijuana around twice per week up until early November 2019. The mother alleged that she has “since ceased use of marijuana and have cut ties with my supplier.” Despite these assertions of the mother that she has ceased use of marijuana, the Court’s concerns remain, on the material before the Court, that there is a significant risk that the mother will continue to regularly ingest marijuana if the child is in her care.
The Court observes that the mother stated that she is happy to undergo urine analysis with respect to her alleged former marijuana use. It will be in the best interests of the child that the Court make the father’s proposed drug and alcohol testing orders in relation to the mother, pending further order.
The Court has not overlooked the mother’s allegations against the father that the father had manhandled the mother during their argument within the home on 9 November 2019, seeking to prevent the mother from leaving the family home; that the father had allegedly jumped on the windshield of Mr A’s motor-vehicle after the mother crashed her car into a power pole; and that the father had threatened to harm Mr A on 10 November 2019, and indeed had assaulted Mr A on 11 November 2019 and was later charged with common assault and actual bodily harm (see the Police entry in Exhibit B for 12 November 2019).
The Court has not overlooked the mother’s allegations that her friend Mr A told her in late September 2019 that he had seen the child wriggling whilst the father was trying to change his nappy so the father picked up the child, turned him around, and threw him violently onto the lounge.
The mother alleges that the father had a temper problem and became angry during their relationship and was verbally abusive towards the children.
Further, the Court has not overlooked the mother’s allegations that the father often smacked the child [C] with excessive force during the relationship when he lost patience with him; the Court observes the mother’s assertions that the father eventually stopped smacking [C] however he continued to yell at him and swear at him. She alleges that more recently the father had been smacking the subject child.
In this context of the mother’s allegations of family violence (and other adverse behaviour) perpetrated by the father, referred to above, it is not without relevance that the open letter from the mother’s solicitors to the father and dated 22 November 2019, Exhibit A, proposed that the child spend in the aggregate five nights each fortnight with the father provided the father continued to live with the paternal grandmother.
Acting cautiously and conservatively, the Court proposes to make a protective order that whilst the subject child is in the primary care of the father, that he not yell or swear at him, he shall not exercise any physical punishment upon the child, and that he live in the same residence as the paternal grandmother.
The Court has not overlooked the mother’s allegations that the father has a history of substance abuse and excessive alcohol consumption. The Court proposes to make a further protective order that whilst the child remains in the primary carer of the father, the father shall not be affected by any illicit drug, or be affected by alcohol such that he has a blood alcohol concentration in excess of 0.05 grams of alcohol in 100 mL of blood.
The Court should state that, in relation to the above discussion under this need to protect primary consideration, the Court has had regard to the Affidavit of the paternal grandmother. She states that she is 44 years of age and she is employed part-time in the healthcare sector. She confirms that the father and child returned home to live with her on 9 November 2019. She refers to rented three bedroom accommodation.
The paternal grandmother states that during the parties’ relationship she was actively involved in the care of the child and that from in or around January 2019 she cared for the child on a weekly basis. She asserts that she cared for the child on an ad hoc basis when the mother would call her stating that she felt overwhelmed and asking if the paternal grandmother could collect the child and [C].
The paternal grandmother refers to acting protectively towards the child historically. For example, she refers to moving marijuana paraphernalia out of reach of the children after the mother would leave such items around the house when she arrived. She refers to having observed the mother on multiple occasions over the past two years smoking marijuana in front of the children. She states that over the past eight months she has become increasingly concerned about the mother’s use of marijuana and the frequency with which she has observed her to be smoking marijuana at the home when she arrived to care for the child and [C].
The paternal grandmother states that she has never discussed these issues with the mother as she was scared to say anything. She stated in the past that she has seen the mother become hysterical and have rapid mood swings.
Based on the Affidavit of the paternal grandmother, there is a significant suggestion that she will act protectively towards the child whilst the child is residing at her residence with the father, and if the child is spending time with the mother supervised by the paternal grandmother. In this latter context, it will be in the best interests of the child that, pending further order, not only that the child live with the father but that the child spends time with the mother supervised by the paternal grandmother for the times proposed by the father in his Response (subject to any agreement of the parties as to different times). The father’s proposed FaceTime and telephone communication order between the mother and child will be in the best interests of the child.
The father’s proposed section 68B injunctive order restraining the mother from allowing the child to be in the presence or company of Mr A will also be in the best interests of the child, based on the material before the Court.
The Court gives significant weight to the matters discussed above under this need to protect primary consideration.
Relevant additional considerations
It would appear that both parties have the capacity to provide for the children’s needs, subject to the Court’s concerns as discussed above under the need to protect primary consideration.
Both parties would appear to have demonstrated satisfactory attitudes towards the children and the responsibilities of parenthood, but again, subject to the Court’s discussion above under the need to protect primary consideration
In relation to parental responsibility, it will not be in the best interests of the child to make any orders for parental responsibility at this interim stage. The child is very young and there are no major decisions looming for him, and these interim proceedings are in their infancy.
The father’s proposed interim orders under the heading “Miscellaneous” in his Response, will also be in the best interests of the child.
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following orders:
That until further Order, [X] shall live with the Father.
Spend Time
That [X] spend time with the Mother as follows:
2.1.Each Saturday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.2.Each Tuesday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.3.Each Thursday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.4.On Christmas Day 2019 for 3 hours at a time agreed between the parties, and failing agreement between 8am and 11am.
That the time [X] spends with the Mother must be supervised by the Paternal Grandmother.
That the solicitors for the Father shall provide to the Court an undertaking by the Paternal Grandmother prior to the first occasion of supervised time.
That the Father facilitate FaceTime and/or telephone communication between the Mother and [X] each day between 6pm and 7pm.
Drug and Alcohol Testing
That until further order, the Mother submit to urinalysis and hair follicle tests for the detection of alcohol and drugs randomly, not being more often than twice per month for urinalysis or once in every three months for hair follicle tests.
For the purpose of hair follicle tests:
7.1.The Mother shall not cut her hair shorter than 3 centimetres until the date specified in the preceding paragraph of this Order.
7.2.The tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.
7.3.That the Mother provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Father’s lawyers and to the Mother’s lawyers immediately upon its completion.
7.4.Each test shall be for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine, chronic alcohol use and any other drugs of abuse.
7.5.The Mother pay the cost of such tests (and the referral).
7.6.In the event of a positive test or any breach of this Order by the Mother, the Mother’s time with [X] under this order is suspended until further order, each party in that event having liberty to apply at short notice.
Miscellaneous
The parties are restrained from denigrating the other party to the child and the parties must use their best endeavours to ensure that no other person denigrates the other party to the child.
That the Father keep the Mother advised in relation to all medical and health care practitioners and specialists that the Child is to attend upon from time to time in a timeframe such that the Mother is able to attend at any appointments made for the Child.
10. That the Mother be at liberty to contact all medical and health care practitioners and specialists that the child may attend upon from time to time so as to enable her to obtain information pertaining to the Child’s health.
11. That the Father do all acts and sign all documents necessary to ensure that the Mother is specifically authorised to contact, speak with and obtain information from any medical and health care practitioners and specialists that the Child may attend upon from time to time.
12. That the parties shall notify each other immediately or at least within one (6) hours of any medical emergency involving the Child.
13. That whilst the Child is in each party’s respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other properly informed of any required treatment or medication required in relation to the Child and the parties shall ensure the proper administration of such medication and treatments is performed by them.
Procedural Orders
14. Pursuant to Rule 15A.05 of the Federal Circuit Court Rules2001, the Parties have leave to issue more than five (5) Subpoena.
15. Pursuant to Section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed for the child [X] born … 2018 ("[X]").
16. Pursuant to section 62G(2) of the Family Law Act 1975 the parties attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report;
17. The Family Report to deal with the following matters:
17.1.The benefit to the child of a meaningful relationship with each parent.
17.2.The capacity of each parent to protect the child from harm.
17.3.The capacity of each parent to promote the psychological, emotional and educational wellbeing of the child.
17.4.The insight of each parent into the children’s needs.
17.5.The attitude of each parent to the responsibilities of parenthood.
17.6.Any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes.
17.7.Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
18. The parties send copies of all of their Court documents to the Family Report Writer within 7 days of being requested to do so by the Family Report Writer.
19. The Family Consultant has leave to view all material produced under subpoena and released for inspection.
20. The Family Consultant has leave to view all material filed in the proceedings before or after the release of the Family Report.
Injunctions
21. Pursuant to section 68B of the Family Law Act 1975, that the Mother be restrained by injunction from allowing [X] to be in the presence or company of the mother’s de facto partner, Mr A ("Mr A").
22. Pending further order, whilst the child is in the primary care of the father, the father shall not yell or swear at the child; he shall not exercise any physical punishment upon the child; and he shall live in the same residence as the paternal grandmother.
23. Pending further order, whilst the child remains in the primary care of the father, the father shall not be affected by any illicit drug, and nor shall he be affected by alcohol such that he has a blood alcohol concentration in excess of 0.05 grams of alcohol in 100 mL of blood.
24. The proceedings are adjourned for mention to 13 February 2020 at 9.30am.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 24 December 2019
Key Legal Topics
Areas of Law
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Family Law
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