FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tamela & Hester [2023] FedCFamC1F 969
File number(s): MLC 4237 of 2022 Judgment of: MCNAB J Date of judgment: 15 November 2023 Catchwords: FAMILY LAW – PARENTING – Magellan List – Where the mother has made repeated allegations of the father sexually abusing the daughter – Where allegations of sexual abuse are unsubstantiated –Where the mother has subjected the daughter to medical examinations - Where the mother has paranoid ideations in relation to the father – Where the mother has failed to file any trial affidavit – Where the Court ordered that the hearing proceed on an undefended basis - Where a longer block of time with the father may create less opportunity for the mother to negatively impact the health of the children if she is minded to do so and may provide some safeguards for the children. Legislation: Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA , 65DAC, 65DAE, 121(9)(g)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bondelmonte & Bondelmonte [2017] 259 CLR 662
RCB & The Honourable Justice Forrest [2012] 247 CLR 304
Division: Division 1 First Instance Number of paragraphs: 75 Date of last submission/s: 13 November 2023 Date of hearing: 13 November 2023 Place: Melbourne Counsel for the Applicant: Ms Theoharopoulou Solicitor for the Applicant: Ms Justice Legal Counsel for the Respondent: Litigant in Person Counsel for the Independent Children’s Lawyer Ms Stavrakakis Solicitor for the Independent Children’s Lawyer Trapski Family Law ORDERS
MLC 4237 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TAMELA
Applicant
AND: MS HESTER
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for the care, welfare and development of the children of the relationship namely X born 2015 and Y born 2016 (“the children”).
2.The children live with the father.
3.The children spend time with the mother commencing as follows:
(a)Commencing 24 November 2023, from the conclusion of school or 3:30 pm on Friday, until the commencement of school (or 5:00 pm on a non-school day) to the following Wednesday, and thereafter each fortnight. The fortnightly cycle is not to reset itself each term but continue through school holidays unless the parties agree otherwise in writing;
During school term holidays
(b)Commencing Term 2 School holidays 2024 for one-half of the school holidays as agreed between the parties or failing agreement, with the father in the first half commencing at the conclusion of school at 3:30 pm until 5:00 pm on the middle Saturday of the school holiday period and with the mother in the second half with her time to conclude the Sunday prior to commencement of school at 6:00 pm;
During Long Summer school holidays
(c)Commencing in 2024 for one-half of the school holidays as agreed between the parties. In default of agreement, on a week about…
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- Case
- [2023] FedCFamC1F 969
- Decision Date
CaseChat Overview and Summary
The court found that the mother's allegations of sexual abuse and family violence were unsubstantiated and that the mother's conduct, including her failure to file necessary affidavits, warranted the hearing to proceed on an undefended basis. The court concluded that a longer block of time with the father could potentially protect the children from the mother's negative influence and provide safeguards for their well-being. The court ordered that the father have sole parental responsibility for the children and set out detailed arrangements for the children to spend time with both parents, including specific schedules for school terms, holidays, and special occasions. The court also mandated communication between the parents and the children, medical treatment protocols, and restrictions on exposing the children to conflict and inappropriate content. The mother was ordered to pay the father's costs.
Orders
Orders of the court
MLC 4237 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR TAMELA
Applicant
AND:
MS HESTER
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1. The father have sole parental responsibility for the care, welfare and development of the children of the relationship namely X born 2015 and Y born 2016 (“the children”).
2. The children live with the father.
3. The children spend time with the mother commencing as follows:
(a) Commencing 24 November 2023, from the conclusion of school or 3:30 pm on Friday, until the commencement of school (or 5:00 pm on a non-school day) to the following Wednesday, and thereafter each fortnight. The fortnightly cycle is not to reset itself each term but continue through school holidays unless the parties agree otherwise in writing;
During school term holidays
(b) Commencing Term 2 School holidays 2024 for one-half of the school holidays as agreed between the parties or failing agreement, with the father in the first half commencing at the conclusion of school at 3:30 pm until 5:00 pm on the middle Saturday of the school holiday period and with the mother in the second half with her time to conclude the Sunday prior to commencement of school at 6:00 pm;
During Long Summer school holidays
(c) Commencing in 2024 for one-half of the school holidays as agreed between the parties. In default of agreement, on a week about basis commencing with the father for the first week;
Mother’s Day
(d) The children shall spend time with the mother for Mother’s Day, as agreed between the parties. In default of agreement, if Mother’s Day falls on a weekend when the children are not already spending time with the mother, from 12:00 pm on the Saturday before Mother’s Day until 6:00 pm on Mother’s Day;
Children’s birthday
(e) The children shall spend time with each parent for their birthday (if they are not ordinarily spending time with that parent) as agreed between the parties but failing agreement:
(i) on a school day from the conclusion of school until 7:00 pm; and
(ii) on a non-school day from 3:00 pm until 8:00 pm.
Mother’s birthday
(f) The children shall spend time with the mother on the mother’s birthday as agreed between the parties. In default of agreement, if the mother’s birthday falls on a day when the children are not already spending time with the mother:
(i) from the conclusion of school at 3:30 pm to 7:00 pm; and
(ii) if the birthday falls on a non-school day from 9:00 am to 3:00 pm.
Christmas
(g) The children shall spend time with each parent on Christmas as agreed between the parties. In default of agreement, the children shall spend time with the father and the mother as follows:
(i) with the father from 3:00 pm on Christmas Eve until 3:00 pm Christmas Day, time commencing in the year 2023 and alternate thereafter; and
(ii) with the mother from 3:00 pm Christmas Day until 3:00 pm Boxing Day, time commencing in the year 2023 and alternate thereafter.
New Year
(h) The children shall spend time with each parent on New Year’s Day as agreed between the parties. In default of agreement, the children shall spend time with the father and the mother on New Year’s Day in alternate years as follows:
(i) with the father from 3.00 pm on New Year’s Eve until 3.00 pm New Year’s Day; and
(ii) with the mother from 3.00 pm New Year’s Day until 3.00 pm 2 January.
Easter
(i) The children shall spend time with each parent during the Easter long weekend as agreed between the parties. In default of agreement, the children shall spend time with the father and the mother in alternate years as follows:
(i) in even years from 1:30 pm on Good Friday until 3:00 pm Easter Sunday commencing with the father;
(ii) in odd years from 3:00 pm on Easter Sunday until Easter Monday commencing with the mother.
Time Suspended
(j) That the time the mother spends with the children be suspended for the following occasions:
Country B New Year
(i) The children shall spend time with the father for the Country B New Year weekend, as agreed between the parties. In default of agreement, if the Country B New Year weekend falls on a weekend when the children are not already spending time with the father, from 12:00 pm on the Saturday of Country B New Year until 6:00 pm on the Sunday of Country B New Year.
Country C New Year
(ii) The children shall spend time with the father for the Country C New Year weekend, as agreed between the parties. In default of agreement, if the Country C New Year weekend falls on a weekend when the children are not already spending time with the father, from 12:00 pm on the Saturday of Country C New Year until 6:00 pm on the Sunday of Country C New Year;
Father’s Day
(iii) The children shall spend time with the father for Father’s Day, as agreed between the parties. In default of agreement, if Father’s Day falls on a weekend when the children are not already spending time with the father, from 12:00 pm on the Saturday before Father’s Day until 6:00 pm on Father’s Day;
Father’s Birthday
(iv) The children shall spend time with the father on the father’s birthday as agreed between the parties. In default of agreement, if the father’s birthday falls on a day when the children are not already spending time with the father:
A. from the conclusion of school at 3:30 pm to 7:00 pm;
B. if the birthday falls on a non-school day from 9:00 am to 3.00 pm.
Changeover
4. Changeover shall occur at the children’s school and outside of school hours as agreed between the parties in writing and in default of agreement at Hungry Jacks Suburb E.
International Travel
5. The mother and father be permitted to remove the children from the Commonwealth of Australia upon written consent of the non-travelling parent as follows:
(a) The travelling parent give no less than 45 days’ notice of any intention to travel overseas with the children including departure and arrival dates and proposed itinerary;
(b) The non-travelling parent to provide written consent or refusal for travel within 7 days after notification has been given;
(c) Upon confirmation and booking of the travel, copies of return flight tickets, itinerary, hotel accommodation and emergency contact numbers are to be provided to the non-travelling parent which is to occur no less than 14 days from the departure date;
(d) Travel occurs during school holidays;
(e) The travelling party shall ensure that their travel insurance includes coverage for the children during all such periods of their travel;
(f) Upon the children’s return from travel, make-up time be provided to the non‑travelling parent with such make-up time to be nominated by the non-travelling parent within 30 days from the day they return;
(g) During the time the children are overseas, the non-travelling parent shall communicate with the children via phone or Facetime on Thursdays for a duration of 30 minutes at a reasonable time; and
(h) Consent cannot be unreasonably withheld.
Interstate Travel
6. For interstate travel, the travelling parent will provide the other parent with written notification of the destination and duration of such travel within 14 days prior to the intended interstate travel. The non-travelling party shall respond to the request within 7 days of notice having been provided and will not unreasonably deny a request.
7. The travelling party shall facilitate liberal telephone, Skype and/or FaceTime communications between the children and the other party at reasonable times during all such periods of travel, failing agreement then on Thursdays and Sundays between 5:00 pm and 8:00 pm (of the time zone that children are present in) with the non-travelling parent to initiate the call.
8. The non-travelling party will be provided with makeup time for the time they miss with the children during the travel.
Passports
9. Each party shall do all acts and things and sign all such documents as may be necessary to cause each of the children to obtain or renew an Australian passport, with the father to retain the children’s passports for safekeeping except when required by the mother for the purpose of international travel with the children in accordance with these orders. In the event the mother refuses to do all acts and things and sign all such documents to obtain and renew an Australian Passport then the father be permitted to make a sole application.
Communication
10. The father and the mother shall facilitate the children communicating with either parent at all reasonable times as requested by them but failing agreement between 5:00 pm and 8:00 pm on each Thursday for the mother and between 5:00 pm to 8:00 pm each fortnight on a Sunday for the father for a 30-minute video call and for the parent wishing to speak to the children to initiate the call to the number nominated by the other parent and the children shall be afforded privacy during the call. That the parties shall forthwith implement the 'AppClose' application, or such other communication application as may be agreed by the parties with respect to day-to-day communication about arrangements for the children and their welfare.
11. The parties shall forthwith implement the ‘AppClose’ application, or such other communication application as may be agreed by the parties with respect to day-to-day communication about arrangements for the children and their welfare.
12. The parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
School and Extra Curricular Activities
13. Both parents be at liberty to attend any extracurricular activities that the children are involved in.
14. Both parents be at liberty to attend any school events relating to the children’s attendance at school, including parent /teacher interviews, fetes, assemblies/awards ceremonies and concerts.
15. Both parents be permitted to communicate directly with the children’s school and sporting or any other relevant bodies to receive school notices, information, newsletter, school reports, school photographs and any other necessary information about the children’s progress at their own expense.
Medical Treatment
16. The parents shall authorise the children’s General Practitioners and treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to the children at that parent’s cost (if any).
17. The parties advise each other as soon as practicable of any significant illness and/or injury suffered by the children or either of them whilst in their respective care, along with the names and contact details of any treating medical, dental, psychologist and/or allied health professionals so that each parent may liaise with same.
18. Neither party take the children to any counsellor, therapist, psychologist or other mental health professionals without the consent in writing of the other party.
19. Unless otherwise agreed in writing, the parties continue to attend upon the children’s regular General Practitioner in order to ensure continuity of care for the children, save for instances of emergency.
20. In the event the children or either of them requires admission to hospital (including attendance at an emergency department) or specialist treatment, then both parents shall be permitted to be present/attend same.
21. The mother shall not expose the children to any further forensic or medical examinations in relation to any allegations of child abuse, unless she has first reported such allegations to the Department of Families, Fairness and Housing (“DFFH”) and followed their professional direction. The mother shall provide written evidence of such direction to the father within seven days of receiving it.
Restraints
22. The parties and their servants and agents be and are hereby restrained from:
(a) Physically disciplining the children or threatening to physically discipline the children;
(b) Allowing the children to watch inappropriate and non-age-appropriate content and movies;
(c) Denigrating each other and their families to or in the presence or hearing of the children and permitting any other person to do so;
(d) Passing messages through the children to the other parent;
(e) Discussing parenting disputes and/or issues with or in the presence of the children or permitting any other person to do so; and
(f) Exposing the children to any conflict between the parties and their families or permitting any other person to do so.
Family Dispute Resolution
23. In the event the parties are in dispute with any of the Orders in the future, the parties are to first attend upon a Family Dispute Resolution Service to negotiate and discuss the issue before the parties undertake court proceedings.
Children’s Psychological Treatment
24. The children shall commence counselling with a child psychologist as soon as practicable.
25. The children shall attend at least one session per fortnight, or as directed by the psychologist.
26. The parents shall share the costs of the counselling equally unless otherwise agreed.
27. The parents shall provide the name and contact details of the psychologist to each other and to the Independent Children’s Lawyer (“ICL”) within seven days of commencing counselling.
28. The ICL shall provide the psychologist with a copy of the Magellan Family Report, dated 8 September 2023, and the Child Impact Report prepared by Dr D, dated 7 September 2022, and the Judgment in this matter, within seven days of receiving the psychologist’s details.
29. The ICL shall provide a copy of this Judgment to the Department of Families, Fairness and Housing.
30. The Respondent mother pay the Applicant father’s costs fixed in the sum of $15,000 within 30 days of the date of this order.
31. All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A. Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I do not think there is any utility in having a proviso that there be a process of consultation prior to any decision being made by the father regarding the long-term interests of the children relating to health, religion and education. Any efforts at consultation are likely to lead to an escalation of tension between the parties and will probably negatively affect the children. I am satisfied that the father will act in the children’s best interests when making long-term decisions about the children when exercising parental responsibility.BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) The primary considerations are the benefit to the children of having a meaningful relationship with both children’s parents, and under section 60CC(2)(b), the need to protect the children from: physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. The children have reported to the Family Consultant and the ICL that they both wish to spend time and have a meaningful relationship with both the father and mother. The father’s proposal that they spend nine nights with him and five nights with the mother does provide for the maintenance of a meaningful relationship with both parents. The mother’s initial proposal that the children spend no time with the father does not. The mother's changed position to suggest alternative weekends to be spent in the father's care was grudging and it is apparent that the mother does not wish the children to spend any time with the father. Section 60CC (2)(b) In relation to risk, and in particular, alleged physical abuse, the mother alleges that the father is a risk to the children, and she alleges:(a)that he has engaged in family violence in the presence of the children towards her;(b)that he has repeatedly sexually abused his daughter and, at times, involved his son to the extent of having the boy act as a look-out to prevent him getting caught; (c)is unable to properly attend to the medical needs of the children; and(d)that he has subjected the mother to electronic stalking as a form of family violence. As was noted above, the mother filed a Notice of Child Abuse, Family Violence or Risk Assessment in late 2022, alleging, inter alia, sexual abuse of the daughter by the father. Those allegations are detailed in the Magellan Report from the Department of Families, Fairness and Housing (“DFFH”) of 3 February 2023, which is Exhibit A1, and in the response to a request for a Section 69ZW Report dated 2 October 2023, and in the Magellan Family Report of Mr M dated 8 September 2023. The report of Mr M is comprehensive and includes extracts from the material that was then available to him from the reports from the DFFH, the allegations that had been raised by the mother and the responses to that by the department. The report notes that DFFH involvement commenced in early 2020, with Ms Hester reporting family violence and controlling behaviours by the father dating back to 2018. That report was closed at intake after follow-up with Ms Hester who reported that the father's behaviour had improved.