FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rowlinson & Bradford [2023] FedCFamC2F 1484
File number(s): NCC 4623 of 2020 Judgment of: JUDGE BETTS Date of judgment: 20 November 2023 Catchwords: FAMILY LAW – Parenting – two (2) boys aged 9 and 8 living with Mother since separation in September 2020 and spending very limited time with the Father – each parent seeks primary care – consideration of risks and best interest – children to live with Mother and spend time with Father on a limited basis.. Legislation: Family Law Act 1975 (Cth), Pt VII Cases cited: Harridge and Anor & Harridge and Anor [2010] FamCA 445
Isles & Nelissen [2022] FedCFamC 1A 97
M & M (1988) FLC 91-979
MRR & GR (2010) FLC 93 – 424
Division: Division 2 Family Law Number of paragraphs: 224 Date of last submission/s: 3 July 2023 Date of hearing: 27, 28 & 29 September 2022, 16 & 17 February 2023, 3 & 4 April 2023, 3 July 2023 Place: Newcastle Counsel for the Applicant: Mr Dura Solicitors for the Applicant: Rossi Simicic Lawyers Counsel for the Respondent: Mr Mooney Solicitors for the Respondent: Access Family Law Counsel for the Independent Children’s Lawyer: Mr Dean Solicitors for the Independent Children’s Lawyer: Nls Law ORDERS
NCC 1609 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROWLINSON
Applicant
AND: MS BRADFORD
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
PARENTING:
1.All prior parenting Orders and injunctions are discharged.
Parental responsibility:
2.The mother has Sole Parental Responsibility for the decisions relating to the children X born in 2014 and Y born in 2015 (the children). As soon as possible after making any decision in the exercise of her parental responsibility pursuant to this Order, the mother is to notify the father in writing of the decision as well as providing him with any written directions/instructions in the event the father is required to implement any aspect of the decision while the children are in his care.
Children live with mother:
3.The children live with the mother.
Children spend time with father:
4.The children spend time with the father as follows:
Stage 1:
(a)for a period of two (2) months from the date of the Final Orders, the children spend supervised time with the father on one (1) occasion a fortnight for two (2) hours on a day and time available to the father and the B Contact Service or another registered contact service agreed to by the mother. Such time is to occur after school or on the weekend (providing that it does not occur when the children have extra-curricular activities).
Stage 2:
(b)at the expiration of order 4(a) and continuing until the commencement of NSW School Term 2 in 2024 (including during school holiday periods):
(i)the first Sunday of each month from 10am until 5pm supervised by the paternal aunt Ms C at a location determined by Ms C and the…
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CaseChat Overview and Summary
The legal issues in this case centered on the allocation of parental responsibility, the determination of the primary residence of the children, and the establishment of a visitation schedule for the father. The court had to consider various factors, including the children's welfare and best interests, the parents' ability to provide for those needs, and the children's existing attachment to their current living arrangements and each parent.
In its reasoning, the court noted the children's existing attachment to their mother, who had been their primary caregiver since the separation. The court also considered the father's limited involvement in the children's lives and the potential impact of any changes on their welfare. The court acknowledged the father's desire for increased contact but emphasized the need for a gradual transition to ensure the children's adjustment. The court determined that the children's best interests would be served by maintaining their residence with the mother, with a phased visitation schedule for the father, contingent on certain preconditions being met.
The court made several orders to address these issues. The children were to live with the mother, with the father having supervised visitation initially, transitioning to unsupervised visits based on his compliance with certain conditions. The mother was granted sole parental responsibility, with the father required to notify her of any decisions made regarding the children's care. The visitation schedule was structured to allow the children to gradually adjust to increased contact with the father, with specific conditions for the father to meet, such as a negative hair strand test for illicit substances and alcohol, no final apprehended violence orders against him, and no criminal charges pending. If the father failed to meet these conditions, his visitation rights would revert to the initial supervised schedule.
The court's orders aimed to balance the children's need for stability and continuity with the father's desire for increased involvement, ensuring that any changes were made in a manner that prioritized the children's welfare and best interests.
Orders
Orders of the court
NCC 1609 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ROWLINSON
Applicant
AND:
MS BRADFORD
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
PARENTING:
1. All prior parenting Orders and injunctions are discharged.
Parental responsibility:
2. The mother has Sole Parental Responsibility for the decisions relating to the children X born in 2014 and Y born in 2015 (the children). As soon as possible after making any decision in the exercise of her parental responsibility pursuant to this Order, the mother is to notify the father in writing of the decision as well as providing him with any written directions/instructions in the event the father is required to implement any aspect of the decision while the children are in his care.
Children live with mother:
3. The children live with the mother.
Children spend time with father:
4. The children spend time with the father as follows:
Stage 1:
(a) for a period of two (2) months from the date of the Final Orders, the children spend supervised time with the father on one (1) occasion a fortnight for two (2) hours on a day and time available to the father and the B Contact Service or another registered contact service agreed to by the mother. Such time is to occur after school or on the weekend (providing that it does not occur when the children have extra-curricular activities).
Stage 2:
(b) at the expiration of order 4(a) and continuing until the commencement of NSW School Term 2 in 2024 (including during school holiday periods):
(i) the first Sunday of each month from 10am until 5pm supervised by the paternal aunt Ms C at a location determined by Ms C and the father;
(ii) the third Sunday of each month from 10am until 4pm supervised by the paternal aunt Ms C in the Region D area;
(iii) on each of the children’s birthdays for a period of two (2) hours from 4pm until 6pm if the birthdays fall on a day that the father is not already spending time with the children, supervised by Ms C;
(iv) on 24 December 2023 (Christmas Eve) from 10am until 7pm, supervised by Ms C.
In the event that Ms C is unavailable to supervise any of the above visits, then the father’s time is to be supervised by another person as agreed in writing between the parents and failing agreement by a professional supervisor (or organisation) with the father to be responsible for the supervision costs.
Stage 3:
(c) upon the commencement of NSW School Term 2 in 2024, the children spend unsupervised time with the father as follows and PROVIDING THAT the father has satisfied the conditions set out in Order 7:
(i) during school term – each alternate Sunday from 10am until 7pm, commencing the first Sunday in terms 1 and 4; and in term 2 commencing on the Sunday which avoids a clash with Mother’s Day; and in term 3 commencing on the Sunday which aligns with Father’s Day;
(ii) on 24 December 2024 (Christmas Eve) from 10am until 7pm;
(iii) during the end of term 1, end of term 2 and end of term 3 NSW school holiday periods, the father’s weekend time with the children in order 4(c)(i) will be extended such that the children spend time with the father from 5pm Friday until 7pm Sunday on that weekend, providing the children stay at Ms C’s residence overnight or that Ms C stays overnight at the location of the children for that period of time;
(iv) during the end of term 4 NSW school holiday period, order 4(c)(i) is suspended and the children will spend time with the father on the first weekend of the school holidays and then the second weekend of January each year from 5pm Friday until 7pm Sunday, providing the children stay at Ms C’s residence overnight or that Ms C stays overnight at the location of the children for that period of time. The children will also spend time with the father from 10am until 5pm on the last Sunday before school recommences;
(v) on Christmas Day from 3pm until 7pm in even numbered years and from 10am until 7pm in odd numbered years;
(vi) on each of the children’s birthdays, if the birthday falls on a day that the father is not already spending time with the children then from 3pm (or immediately after school if a school day) until 6pm.
(vii) at other times as determined by the mother at her sole discretion;
(viii) for the purposes of Orders 4(c)(iii) and 4(c)(iv), “overnight” is defined as commencing at 7.30pm and concluding at 7.30am.
5. To facilitate the time referred to in Order 4(a) wherein the children spend with the father supervised by the contact service, the following is to occur:
(a) the father is to pay all associated costs with the supervision except for any requested reports;
(b) should either parent seek any reports from the contact service that parent is responsible for payment for those reports requested;
(c) the mother and father shall comply with all intake procedures and policies and follow the reasonable directions of the supervised contact services whilst ever the children spend time with the father at the supervised contact service.
Changeovers:
6. All changeovers to facilitate the time that the children spend with the father will occur as follows:
(a) when it is supervised by the contact service - as directed by that contact service;
(b) When it is supervised by Ms C, she will collect the children from Suburb E McDonalds, F Street, Suburb E or at another place agreed to between she and the mother;
(c) for the purposes of order 4(c)(vi) – at the children’s school/s;
(d) and all other times by the mother delivering the children to the playground at Suburb E McDonalds, F Street, Suburb E and the father collecting the children from the playground at Suburb E McDonalds unless otherwise agreed in writing by the parties;
(e) At any other places as agreed by the parents in writing by either SMS messages or email or other forms of written communication.
Preconditions to the operation of order 7:
7. Order 4(c) is only to operate PROVIDED THAT:
(a) the Father first undertakes a hair strand test for illicit substances and alcohol to cover a period of six (6) months usage. The test is to be conducted by an Australian Workplace Testing Clinic or such other testing organisation/service and such test must show a negative result for all illicit substances and a result for alcohol showing a moderate consumption (or less). This Order provides authority for Australian Workplace Testing Clinic or such other testing organisation/service to provide a copy of the results of the hair strand test directly to the mother’s email address;
(b) there has been no Final AVO made against the father;
(c) the father has not been charged with any criminal offence/s after the date of these orders.
8. If the father fails to meet the requirements of order 7(a), order 7(b) or order 7(c), then his time with the children is to revert to that provided for in order 4(a) unless at her sole discretion the mother otherwise agrees in writing. In the event that the father is charged with any criminal offence/s and subsequently acquitted or the charge/s dismissed or dropped,
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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