FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shelburn & Beazley [2023] FedCFamC2F 1163
File number(s): HBC 1011 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 6 September 2023 Catchwords: FAMILY LAW – parenting – parental responsibility – where presumption of equal shared parental responsibility rebutted – where history of poor communication between parties – order that the father have sole parental responsibility.
FAMILY LAW – parenting – with whom the child lives – where allegations that the child has been sexually abused in the care of the father and that the father neglects her medical needs – no finding of sexual abuse made – where allegation that the mother’s parenting style poses unacceptable risk to the child in respect of her mental health – orders that child live with the father and spend supervised time with the mother for a period before graduated progression to child living equally with both parents
Legislation: Family Law Act 1975 (Cth) ss 4AB, 4AB(1), 60B(1), 60CA, 60CC(2), 60CC(3), 60CC(3)(d), 61B, 61DA(1), 61DA(2), 61DA(4), 65DAA, 65DAA(3), 65DAC Cases cited: Aldridge & Keaton (2009) FLC 93-421
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Isles & Nellisen [2022] FedCFamC1A 97
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 252 Date of hearing: 22 – 25 May 2023 Place: Hobart For the Applicant: In person Solicitor for the Respondent: Ms Watson, Tasmania Legal Aid Counsel for the Independent Children’s Lawyer Mrs Mooney SC, Mr Royston assisting ORDERS
HBC 1011 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHELBURN
Applicant
AND: MR BEAZLEY
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The Respondent Father MR BEAZLEY (“the Father”) have sole parental responsibility for the child, X born in 2015 (“the child”), subject to the following:
(a)The Father shall notify the Applicant Mother MS SHELBURN (“the Mother”) of any major-long term decisions to be made concerning the child not less than four (4) weeks prior to such decision to be made and the Mother may express a view about that decision by written communication to the Father; and
(b)The Father must give Mother’s expressed view bona fide consideration when making such decision, but will not be not be bound by it.
3.For a period 6 September 2023 to 29 September 2023:
(a)The child live with the Father, from the conclusion of school on Wednesday 6 September 2023; and
(b)The child spend supervised time with the Mother at the J Contact Centre for two (2) hours every weekend commencing 9 September 2023, subject to availability, and additional time if agreed and can be facilitated by the J Contact Centre; and
(c)The Mother is restrained from approaching the child and attending the school to seek to communicate or engage with her.
4.From 29 September 2023 to…
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CaseChat Overview and Summary
The court found that the presumption of equal shared parental responsibility was rebutted due to the history of poor communication between the parties and other relevant factors. Regarding the allegations, while no finding of sexual abuse was made, the court considered the neglect of the child's medical needs by the father. The court also found that the mother's parenting style posed an unacceptable risk to the child's mental health. Consequently, the court ordered that the father have sole parental responsibility for the child, with certain conditions attached. The child was to live with the father initially, with supervised time to be spent with the mother, followed by a week-on, week-off arrangement. Special occasions were also detailed in the orders.
The court further issued several injunctions to protect the child, including restrictions on sleeping arrangements, negative communication, and physical punishment. Both parties were restrained from relocating the child's residence, changing her school or general practitioner, and inspecting the child for injuries upon handover. The mother was also restrained from contacting a specified individual, and both parties were required to communicate via a designated app, except in emergencies. Additionally, the father was mandated to complete a parenting course and engage with family services. The Independent Children's Lawyer was appointed for an extended period to monitor the situation.
The final orders of the court included detailed provisions for parenting time, special occasions, injunctions, and other protections for the child. The court emphasised the importance of the child's welfare and safety in making these orders.
Orders
Orders of the court
HBC 1011 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SHELBURN
Applicant
AND:
MR BEAZLEY
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. All previous parenting orders are discharged.
2. The Respondent Father MR BEAZLEY (“the Father”) have sole parental responsibility for the child, X born in 2015 (“the child”), subject to the following:
(a) The Father shall notify the Applicant Mother MS SHELBURN (“the Mother”) of any major-long term decisions to be made concerning the child not less than four (4) weeks prior to such decision to be made and the Mother may express a view about that decision by written communication to the Father; and
(b) The Father must give Mother’s expressed view bona fide consideration when making such decision, but will not be not be bound by it.
3. For a period 6 September 2023 to 29 September 2023:
(a) The child live with the Father, from the conclusion of school on Wednesday 6 September 2023; and
(b) The child spend supervised time with the Mother at the J Contact Centre for two (2) hours every weekend commencing 9 September 2023, subject to availability, and additional time if agreed and can be facilitated by the J Contact Centre; and
(c) The Mother is restrained from approaching the child and attending the school to seek to communicate or engage with her.
4. From 29 September 2023 to 2 October 2023:
(a) The child live with the Father; and
(b) The child spend time with the Mother from after school on Friday 29 September 2023 until 3:00pm Monday 2 October 2023.
5. Following the expiration of the period referred to in Orders 3 and 4 of these Orders, the child live with the Father and Mother on a week on and week off basis, being:
(a) With the Father in the week commencing 2 October 2023, and each alternate week thereafter;
(b) With the Mother in the week commencing 9 October 2023, and each alternate week thereafter; and
(c) With changeovers of care to occur at H School on Mondays at the commencement of school or 3:00pm on a non-school day.
Special occasions
6. For special occasions, the child’s usual time with the parties be suspended and the following orders apply:
(a) For Christmas 2023, and each alternate year thereafter:
(i) With the Mother from 2:30pm on 24 December until 2:30pm on Christmas Day,
(ii) With the Father from 2:30pm on Christmas Day until 2:30pm on 26 December.
(b) For Christmas 2024, and each alternate year thereafter:
(i) With the Father from 2:30pm on 24 December until 2:30pm on Christmas Day,
(ii) With the Mother from 2:30pm on Christmas Day until 2:30pm on 26 December.
(c) For Mother’s and Father’s Day:
(i) In the event the child is not with the Mother on Mother’s Day each year, with the Mother from 5:00pm the Saturday prior until 5:00pm that day;
(ii) In the event the child is not with the Father on Father’s Day each year, with the Father from 5:00pm on the Saturday prior until 5:00pm that day.
Parenting Courses and other protections relating to the Father
7. The Father must register/enrol in the free online Triple P Parenting Program parenting course within fourteen (14) days of this order and complete such course within three (3) months of the date of these Orders.
8. Within seven (7) days of completion of the parenting course ordered in Order 6 of these Orders, the Father is to provide a copy of the completion certificate to the Independent Children’s Lawyer by email.
9. The Father must within 14 days seek a referral from Child Safety Services to the K Family Services and thereafter engage with the K Family Services if they are able and willing to provide him with support services.
10. The Father must ensure that Mr L does not reside at the home he occupies with the child and is required to immediately ensure he no longer sleeps in the bedroom occupied by the child.
11. The Father is to arrange for Mr L to enter into a written undertaking consistent with the evidence he gave and referred to at [107] of the Reasons for Judgment and must file the same within seven (7) days of these orders.
Section 68B Injunctions
12. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN and the Father MR BEAZLEY are restrained by injunction from allowing any adult to sleep in the same bedroom as the child while the child is in their care; save that the Mother may share the same bedroom with the child.
13. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN and the Father MR BEAZLEY are restrained by injunction from denigrating or speaking negatively about the other party or their extended family within the child’s hearing, or allowing the child to remain in the presence of any third party who is doing so.
14. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN and the Father MR BEAZLEY are restrained by injunction from discussing parenting issues and these proceedings, orders or parenting arrangements in the presence or hearing of the child, or allowing the child to remain in the presence of any third party who is doing so.
15. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Father MR BEAZLEY is restrained by injunction from allowing any adult to assist the child with personal hygiene and bathing/showering while the child in his care, unless the child requests assistance.
16. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Father MR BEAZLEY is restrained by injunction from allowing any person other than himself to apply eczema creams or administer other treatment for the child’s personal care while the child in his care.
17. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Father MR BEAZLEY is restrained by injunction from physically punishing or disciplining the child while the child in his care, and from allowing any other person to do so.
18. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN is restrained by injunction from bringing the child into contact or communicating with Mr M.
AND THE COURT NOTES THAT:
A. Pursuant to section 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the order for personal protection in Orders 12 to 18 have been breached.
Other Orders
19. Both parties are restrained from relocating the child’s residence while in their care outside 40km from the child’s school, without written consent of the other party
20. The Father is restrained from enrolling the child in a primary school other than H School, without the written consent of the Mother.
21. Both parties are restrained from changing the child’s treating general practice from N Medical Centre at O Street in Suburb P, without the written consent of the other party.
22. The parties are restrained from undertaking a physical inspection of the child contemporaneously with the return of her from the other party’s care and taking any photographs of alleged injuries or bruises they perceive on the child that they allege that were sustained in the other party’s care.
23. The parties are to communicate (in respect of the child) via a parenting app, save and except for in the event of emergency and in the event of emergency concerning the child, the parties shall telephone the other party to notify them as to the emergency, as soon as practicable.
24. Within seven (7) days of any change to the parties’ residential addresses, email addresses or mobile telephone numbers, the party will inform the other party in writing of the new details.
25. This Order acts as an authority to all health and medical professionals who treat the child from time to time to provide both the Mother and the Father with all information and documentation sought by them in relation to the child’s welfare and medical treatment from time to time, including but not limited to copies of all reports, referrals, records and documents pertaining to the child (at each party’s own cost).
26. This Order acts as an authority to all schools attended by the child from time to time, to provide to each of them all information and documentation sought by them in relation to the child’s welfare, progress and activities at school (or day care) from time to time, including but not limited to providing the parties with copies of school newsletters and other notes/letters to the parties, copies of the child’s school reports, details of the child’s parent/teacher interviews, copies of order forms for the child’s school/day care photos and certificates and awards obtained by the child (at each party’s own cost).
27. The Mother must continue to engage with her psychological support professionals and follow their reasonable recommendations.
28. Subject to a grant of legal aid, the appointment of the Independent Children’s Lawyer is to extend for a period of three (3) months from the date of these Orders.
29. The Independent Children’s Lawyer make arrangements with Dr Q, so to explain these orders to the child as soon as possible and prior to the Mother spending time with the child pursuant to Order 3 of these orders.
Copies of Orders
30. Leave is granted to the parties to provide a copy of these Orders to the child’s school, J Contact Centre, general practitioner, any hospital or treating health or medical practitioner of the child, psychologist, or any allied health professional with whom the child is engaged.
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.
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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