SAMARIN & HARSHALL

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMARIN & HARSHALL

[2020] FCCA 1543

Catchwords:
FAMILY LAW – Interim parenting – best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant:

MR SAMARIN

Respondent:

MS HARSHALL

File Number:

PAC 4882 of 2019

Judgment of:

Judge Newbrun

Hearing date:

15 May 2020

Date of Last Submission:

15 May 2020

Delivered at:

Parramatta

Delivered on:

17 June 2020

REPRESENTATION

Solicitors for the Applicant:

Mr O’Reilly - Rafton Family Lawyers

Solicitors for the Respondent:	Ms Barr - Legal Aid NSW Parramatta Family Law
Independent Children’s Lawyer	Ms Court - John Spence & Associates

ORDERS PENDING FURTHER ORDER

The child X born in 2017 shall live with the mother.
The parties shall have equal shared parental responsibility for the child.
That the child spent time with the father, whilst the father is present in Australia.
(a)Each Wednesday from 12pm – 5pm
(b)Each Sunday from 12pm – 5pm
(c)Such other time as may be agreed.
The father to collect the child from the mother’s residence at the commencement of the time and return the child to the mother’s residence at the conclusion of the father’s time.
The father undertakes that in the event the child seeks to return to the mother, the father will endeavour to return the child to the mother.
The father is to collect the child from the mother’s residence at the commencement of the time and the mother is to collect the child from the father’s residence at the conclusion of the father’s time.
When the father is residing outside Australia, the child communicates with the father at the following times:
(a)Monday 9:30am Australian Eastern Standard Time (“AEST”)
(b)Thursday 9:30am AEST;
(c)Saturday 9:30am AEST; and
(d)Such other times as may be agreed.
(e)To facilitate the time the father shall call the mother and the mother shall hand the telephone to the child. If available in the alternative the calls can occur by facetime.
That the father to give the mother at least 14 days notice of any requirement to travel outside Australia, and at least 14 days notice of any proposal to return to Australia.
That on a without admissions basis, the father shall not consume alcohol, 24 hours prior to or at any time that child is in his care.
That on a without admissions basis, the father shall not consume any non prescription drugs/medication or illicit substances, 24 hours prior to or at any time the child is in his care.
Neither party will denigrate the other parent in the presence or hearing of the child or allow any third party to denigrate the other parent in the presence or hearing of the child.
Within seven (7) days of the child’s enrolment at any day care centre or schools the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that the day care or school that the child may attend from time to time forwards directly to the father copies of all of the child’s reports and merit cards, any written material pertaining to the child’s academic and extra-curricular activities, and invites the father to any school or extra-curricular activity events the child may be involved in from time to time.
In the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practical after the first contact with either the medical practitioner, medical centre or hospital. That parent shall do all acts and things and give all irrevocable authorities necessary to ensure that the medical practitioner, medical centre or hospital is able to provide all information pertaining to the child to the other parent upon request.
Within seven (7) days of these Orders being made, the mother and the father shall advise the other of the following, and shall advise the other of any change to the following within seven days of such change occurring:
(a)The residential address of the parent and particulars of the others who may reside with the child
(b)The individual mobile telephone number and email address of the parent; and
(c)Any other matter relevant to the child’s welfare.
That in the event that the child requires specialist medical care and/or psychological intervention including assessments and/or consultations, then each party shall ensure that the other party is informed and consulted with prior to any appointments being made for the child and that each party shall be provided with the following:
(a)A copy of any referral letters or Care Plans from the child’s treating General Practitioner;
(b)Not less than 14 days prior notice of any appointments booked for the child and that each party is at liberty to attend those appointments;
(c)Copies of any reports or correspondence from the medical specialist or psychologist.
That each party shall do all things and sign all documents necessary to authorise and direct any Pre School or School attended by the child to discuss with the father the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
That each party shall do all things within their power to actively promote and encourage the relationship between the child and the other parent and members of the other parent’s extended family.
The father shall takes all reasonable steps to participate in an alcohol education course as soon as possible.
The father shall inform the mother when he proposes to introduce his new partner to the child so that the mother can have advance notice and prepare the child for that introduction.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the 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.

NOTATION: These Orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to discharge Order 6.

IT IS NOTED that publication of this judgment under the pseudonym Samarin & Harshall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4882 of 2019

MR SAMARIN

Applicant

And

MS HARSHALL

Respondent

REASONS FOR JUDGMENT

Introduction

This interim hearing relates to the child X born in 2017, and the nature and extent of the child’s time to be spent with the father.

Proposals

There is consent between the parties and ICL that the child shall live with the mother, pending further order.
The father sought interim parenting orders set out in his case outline, filed 14 May 2020, annexure A. Inter alia, he sought to spend each Monday and Wednesday with the child, from 10 AM to 6 PM, from 3PM or after daycare on Friday until 6 PM on Saturday, and on certain special days. In relation to the above proposed overnight time, in the alternate, the father sought to spend time with the child on Saturday between 10AM and 6 PM. In relation to the above proposed overnight time, the father proposed, on a without admissions basis, that he would ensure that the paternal grandmother was present between 6 PM Friday until 8 AM Saturday for a period of four weeks.
The mother sought interim parenting orders as set out in her case outline dated 23 March 2020. Inter alia, she sought orders that the child spend time with the father on Wednesdays between 1 PM and 4 PM, and on Sundays between 1 PM and 4 PM. She proposed that the father’s time with the child be supervised by the maternal aunt or the maternal grandfather.
The ICL sought interim parenting orders set out in her proposed minute of order; inter alia, she proposed that the child spend time with the father each Wednesday from 12 PM to 5 PM, each Sunday from 12 PM to 5PM, and such other time as may be agreed.
The ICL’s proposed orders did not require supervision of the child’s time with the father; rather, the ICL proposed, by way of protective orders, in particular her proposed order 4 (relating to the father collecting the child from the mother’s residence at the commencement of the time and return the child to the mother’s residence at the conclusion of the father’s time) and proposed orders 7 and 8 (that the father not consume alcohol, 24 hours prior to or at any time that the child is in his care; and that the father not consume any non-prescription drugs/medication or illicit substances, 24 hours prior to or at any time the child is in his care.)
The mother agreed with the ICL’s proposed order 3, in relation to the child spending time with the father each Wednesday and each Sunday, however the mother proposed that this time be supervised.
The mother submitted that if the court ordered the child to spend unsupervised time with the father, she would seek an order that the father inform the mother when he proposes to introduce his new partner to the child so that the mother can have advance notice and prepare the child for that introduction. If the Court was to order unsupervised time, the mother also sought an order that the father complete a Taking Responsibility course.

Material relied upon

The mother relied upon the following documents:
a)She relied upon her case outline, her Response filed 12 December 2019; notice of risk filed the same date; her Affidavit filed 11 May 2020, and the Affidavit of her sister Ms A filed 14 May 2020. She also relied upon paragraph 72 of the father’s Affidavit filed 18 March 2020.
The father relied upon the following documents:
a)The father relied upon his case outline, his Affidavit filed 12 May 2020, and he also relied upon the Affidavit of Ms A.
The following exhibits were relied upon:
a)Exhibit A: Disciplinary meeting held on 12 February 2019 at the B Club.

Agreed facts unless otherwise stated

The mother is aged 29 years. The father is aged 28 years.
The father asserts that cohabitation commenced in about 2011, whereas the mother asserts the parties commenced cohabitation in 2014.
The father asserts that the parties separated on a final basis in about March 2017, whereas the mother asserts they separated in September 2017.
Again the child was born in 2017.
The mother asserts that the child spent time with the father, from about mid 2017 to mid 2018, 2 to 3 times per week for a few hours at the mother’s residence, with the mother almost always present. On occasion, the mother asserts that the parties also stayed overnight at the other’s house so that the father could spend time with the child.
The mother asserts that from September 2018 to November 2018 the father spent unsupervised time with the child twice a week for two hours on each occasion.
The mother asserts that the father spent unsupervised time with the child at the father’s home each Wednesday from 12 PM to 5 PM on each Sunday from 9 AM to 1:30 PM, from late November 2018 to April 2019.
The father asserts that he moved to the Country C in 2019.
The mother asserts that she travelled to Country D with the child for one week to spend time with the father and his family. Shortly thereafter, the father asserts he returned to the Country C.
The mother asserts that from June 2019 to September 2019 the father spoke to the child via FaceTime once or twice per week.
The father spent time with the child on 18 September 2019.
The mother asserts that the father spent time with the child twice a week for 2 to 3 hours at the mother’s house supervised by the mother and another member of her family, from 18 September 2019 to 7 November 2019.
The mother asserts that the father returned to the Country C on 7 November 2019.
It was common ground at the interim hearing that presently the father was residing in Sydney. He asserts that he arrived in Australia from the Country C in early April 2020. He asserts that since about mid-April 2020 he has spent time with the child on about seven occasions, each time for about three hours. The mother asserts that this time was spent by the child with the father in the presence of the maternal aunt. The maternal aunt asserts in her Affidavit that in general the visits have been going well and she believes that the child is enjoying spending time with the father. The mother asserts that this time has been largely positive. The mother asserts that she has no doubt that the child enjoys seeing the father and it makes her happy to facilitate this time.
The father asserts that he has re-partnered with Ms E and that he has been together with this person since April 2017.
The mother informed the court that she was presently not working in employment.

Relevant legal principles

The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.
In Marvel & Marvel [2010] FamCAFC 101, 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.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.
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).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship.
The child would appear to have at least a positive relationship with the father and will benefit from a continuance, and further development of, that relationship.
Should the child, or an interim basis, spend time with the father each Wednesday from 12 PM to 5 PM, and each Sunday from 12 PM to 5 PM, unsupervised, whilst he is present in Australia (the father has been working in the Country C), and further, that the child communicate with the father when he is residing outside Australia in accordance with the father’s proposed order 7, there is a significant prospect that the child’s positive relationship with the father will be maintained, and potentially enhanced.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The mother contends that there is an unacceptable risk of harm posed to the child if spending unsupervised time with the father, by reason of the father’s consumption of alcohol and use of illicit drugs. She also contends that previously the father has failed to return the child to the mother in a timely fashion in accordance with the parties’ previous agreement. And accordingly, she contends and proposes that there be supervision of the child’s time with the father.
In the mother’s submissions, she recognised that prior to June 2019 the child has spent unsupervised time with the father, during the daytime, on Wednesdays and Sundays. In this context the mother had asserted that the father had been intoxicated prior to June 2019. However, she submitted that by reason of certain events occurring from about June 2019, involving the child and the father, the child’s prospective time with the father should be supervised.

The mother refers to an incident in June 2019 when the mother and child stayed with the father’s family in Country D. The mother refers to herself going into town to dinner one evening and leaving the child at home with the father and the paternal grandfather. She asserts she returned home at 11:30 PM to find that the father and the paternal grandfather and others were in the house intoxicated and playing poker. She asserts that the father told her that he had just put the child to bed, and that when the child was with them he was teaching her how to play poker. The mother asserts that after this event, she did not leave the child alone with the father for the rest of the Country D trip.
The mother refers to an incident on 18 September 2019. She asserts that when the paternal grandmother picked up the child from her, with a view to the child spending time with the father, there was a tacit agreement that the child would be returned in a couple of hours. The father asserts, inter alia, that he was not ready to return the child to the mother after spending a couple of hours with the child, and that he communicated accordingly with the mother. The mother insisted that he return the child. There was an exchange of text messages. The father kept the child in his care until 7:30 PM that day when the child was collected by the mother from the father.
In the context of the father’s alleged alcohol consumption, the mother points to the father receiving a lifetime ban from attending a sporting club, in about 2018. The mother points to a subsequent meeting held at the B Club on 12 February 2019, being a disciplinary meeting relating to the father’s involvement in the above sporting club incident in 2018. Exhibit A document relates to this disciplinary meeting. Exhibit A suggests that the father agreed that he had been involved in a general altercation at the club. Exhibit A suggests that the father agreed he was intoxicated in relation to this altercation. In this context, exhibit A suggests the father stated that he had not been consuming alcohol (he had been “off the grog”) and he wanted to stay off alcohol for the remainder of the season. Exhibit A suggests he stated that he was aware that there was a lot of alcohol involved in relation to the altercation, and that he had “taken that on board.”
Exhibit A suggests that the B Club imposed certain penalties upon the father in relation to the altercation; community service for 25 hours, an alcohol education course to be completed within three months and receipt of a warning letter from the club. Exhibit A suggests that the father stated in response to these penalties that “I have learned my lesson, I’m happy to do those things.”
The mother asserts that it is not apparent from the father’s evidence that he completed the alcohol education course.
The mother asserts that the father’s assertion that since the child was born he has not consumed alcohol to excess is inaccurate, by reason, inter alia, of the above events involving the father’s intoxication.
The mother asserts that she believes alcohol is still an issue for the father. She asserts that between June and September 2019 the father also tried to FaceTime the child on numerous occasions and he appeared drunk.
The mother asserts that in late 2015 she became aware that the father had started using MDMA and cocaine recreationally on the weekends when he went out. She concedes that she did consume drugs on two occasions together with the father. She is concerned that the father may still be using illicit drugs. She asserts her suspicion that the father has abused prescription drugs. She refers to an event in this context in about mid-2018.
The father, for his part, asserts that he is a professional and he is subjected to strict random drug testing as part of his employment. He asserts that as per his contract, any sort of recreational drugs are not tolerated and he would be dismissed if tested positive at any time. He refers in this context to employment drug tests as late as about August 2018 being negative.
The father asserts he has not used any illicit drug since 2016. He asserts that he has not consumed alcohol since early January 2020, aside from 2 celebratory beers.
The mother asserts and alleges family violence perpetrated by the father against her during the relationship. These allegations are significantly denied by the father. The mother had alleged that the father had assaulted her, had been verbally and otherwise abusive to her in messages. The mother also asserts the father has touched her inappropriately in front of the child. In the view of the court, it is not without relevance that there have been occasions post separation when the child has spent unsupervised time with the father, with the mother’s permission.
There is a significant suggestion, on the material before the court, that the father possesses some not insignificant insight into the negative impact upon him if intoxicated.
In the view of the court, addressing the mother’s concerns, referred to in her material and in her submissions, discussed above, there should be no unacceptable risk of harm posed to the child in spending time with the father each Wednesday and Sunday from 12 PM to 5 PM, whilst he is present in Australia, provided the following interim protective orders are made:
a)the father’s proposed order 9 that the father, on a without admissions basis, shall not consume alcohol, 24 hours prior to or at any time that the child is in his care
b)the father’s proposed order 10 that the father not consume any non-prescription drugs/medication or illicit substances, 24 hours prior to or at any time the child is in his care
c)the father’s proposed order 11 that neither party will denigrate the other parent in the presence or hearing of the child or allow any third party to denigrate the other parent in the presence or hearing of the child
d)the ICL’s proposed order 4 that the father collect the child and the mother’s residence at the commencement of the time with the child, and return the child to the mother’s residence at the conclusion of the father’s time (there is a significant prospect that this order will enable the mother to observe the father on his return with the child to the mother)
e)the father takes all reasonable steps to participate in an alcohol education course as soon as possible.
On the material before the court, the above proposed protective orders will ameliorate and minimise any risk of harm posed to the child in spending unsupervised time with the father, as discussed above. There was insufficient material before the court as to the present availability of a Taking Responsibility course for the father, but in any event, the court is of the view that the completion of such a course should not impede the child spending unsupervised time with the father, as discussed above, together with the above proposed protective orders.
In view of the mother’s allegations and concerns in relation to the father spending time with the child (which again, the court notes the significant denials of the father), and taking into account the time spent by the child with the father post separation to date, including the child’s tender age, it will not be in the best interests of the child to spend overnight time with the father at this interim stage, nor to make the father’s other proposed interim time orders relating to time to be spent by the child with the father.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Not relevant.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

See the meaningful relationship primary consideration discussed above.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

It would appear that both parties have taken such opportunities, whilst noting the father’s decision to work overseas.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The father asserts that he pays child support and he is not in arrears.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

In the view of the court, there should be no significant detrimental impact upon the child’s meaningful relationship with the mother should she spend unsupervised time with the father has discussed above.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Not applicable, whilst the father is present in Australia.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Not applicable.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

There is a suggestion that each party has demonstrated appropriate responsibilities of parenthood, subject to the courts discussion above under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family

See the above discussion under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant

The mother sought an interim parenting order that the father inform her when he proposes to introduce his new partner to the child so that the mother can have advance notice and prepare the child for that introduction. Such proposed interim order will be in the best interests of the child; inter alia, it will minimise the risk of confusion for the child.

Parental responsibility

The parties have agreed to equal shared parental responsibility.
It will not be in the best interests of the child, in the above discussed circumstances, including the father’s possible return to the Country C for work, to spend equal time with the parties, nor to spend substantial and significant time with the father at this interim stage. In this context the court refers to its discussions above, in particular under the s60CC primary considerations.

Summary

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 interim Orders:
The child X born in 2017 shall live with the mother.
The parties shall have equal shared parental responsibility for the child.
That the child spent time with the father, whilst the father is present in Australia.
(a)Each Wednesday from 12pm – 5pm
(b)Each Sunday from 12pm – 5pm
(c)Such other time as may be agreed.
The father to collect the child from the mother’s residence at the commencement of the time and return the child to the mother’s residence at the conclusion of the father’s time.
The father undertakes that in the event the child seeks to return to the mother, the father will endeavour to return the child to the mother.
The father is to collect the child from the mother’s residence at the commencement of the time and the mother is to collect the child from the father’s residence at the conclusion of the father’s time.
When the father is residing outside Australia, the child communicates with the father at the following times:
(a)Monday 9:30am Australian Eastern Standard Time (“AEST”)
(b)Thursday 9:30am AEST;
(c)Saturday 9:30am AEST; and
(d)Such other times as may be agreed.
(e)To facilitate the time the father shall call the mother and the mother shall hand the telephone to the child. If available in the alternative the calls can occur by facetime.
That the father to give the mother at least 14 days notice of any requirement to travel outside Australia, and at least 14 days notice of any proposal to return to Australia.
That on a without admissions basis, the father shall not consume alcohol, 24 hours prior to or at any time that child is in his care.
That on a without admissions basis, the father shall not consume any non prescription drugs/medication or illicit substances, 24 hours prior to or at any time the child is in his care.
Neither party will denigrate the other parent in the presence or hearing of the child or allow any third party to denigrate the other parent in the presence or hearing of the child.
Within seven (7) days of the child’s enrolment at any day care centre or schools the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that the day care or school that the child may attend from time to time forwards directly to the father copies of all of the child’s reports and merit cards, any written material pertaining to the child’s academic and extra-curricular activities, and invites the father to any school or extra-curricular activity events the child may be involved in from time to time.
In the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practical after the first contact with either the medical practitioner, medical centre or hospital. That parent shall do all acts and things and give all irrevocable authorities necessary to ensure that the medical practitioner, medical centre or hospital is able to provide all information pertaining to the child to the other parent upon request.
Within seven (7) days of these Orders being made, the mother and the father shall advise the other of the following, and shall advise the other of any change to the following within seven days of such change occurring:
(a)The residential address of the parent and particulars of the others who may reside with the child
(b)The individual mobile telephone number and email address of the parent; and
(c)Any other matter relevant to the child’s welfare.
That in the event that the child requires specialist medical care and/or psychological intervention including assessments and/or consultations, then each party shall ensure that the other party is informed and consulted with prior to any appointments being made for the child and that each party shall be provided with the following:
(a)A copy of any referral letters or Care Plans from the child’s treating General Practitioner;
(b)Not less than 14 days prior notice of any appointments booked for the child and that each party is at liberty to attend those appointments;
(c)Copies of any reports or correspondence from the medical specialist or psychologist.
That each party shall do all things and sign all documents necessary to authorise and direct any Pre School or School attended by the child to discuss with the father the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
That each party shall do all things within their power to actively promote and encourage the relationship between the child and the other parent and members of the other parent’s extended family.
The father shall takes all reasonable steps to participate in an alcohol education course as soon as possible.
The father shall inform the mother when he proposes to introduce his new partner to the child so that the mother can have advance notice and prepare the child for that introduction.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the 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.

NOTATION: These Orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to discharge Order 6.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 17 June 2020

[2020] FCCA 1543

17 June 2020

Key Legal Topics

Areas of Law

Family Law