FAMILY COURT OF AUSTRALIA
| TELFORD & TELFORD (NO. 3) | [2020] FamCA 755 |
| FAMILY LAW – CHILDREN – Parenting – where the mother unilaterally relocated from Adelaide to Sydney with the children and the father has since relocated to Sydney – where there are competing allegations of family violence made by both parties – where it was found that both parties have engaged in family violence before and after separation – where the father was subject to a final ADVO which has since expired – where family violence does not constitute an unacceptable risk to the children – where the mother alleges the father will not adhere to Court orders in light of removing the children interstate on one occasion and having proposed to do so on another occasion – where it was found conduct was contributed to by the mother unilaterally relocating – where held no serious risk – where the father alleges the mother’s emotional dysregulation constitutes an unacceptable risk of psychological harm to the children – where the father alleges the mother has alienated the children from him – where the mother had dysregulated responses after separation – where held her anxiety, depression and stress levels are now managed in the normal range with therapeutic intervention – where found the mother’s negative narrative of the father has been driven by her anxious personality rather than a conscious intention to alienate the children from their father – where held mother’s behaviour towards the father likely has had an alienating effect on the children’s perception of him – where the mother and the Independent Children’s Lawyer propose the mother have sole parental responsibility – where the father seeks equal shared parental responsibility – where the presumption of equal shared parental responsibility does not apply due to finding of family violence and is also rebutted in the best interests of the children – orders made for the mother to have sole parental responsibility – where the mother proposes the children live with her and spend no time with the father in the first instance or alternatively supervised time with the father up until they attain their majority – where found supervision not warranted – where found father had given insufficient attention to the practicalities of providing suitable accommodation for the children – where orders made for the children to live with the mother and spend substantial and significant time with the father – where father’s holiday time with the children subject to obtaining suitable accommodation – where orders made for the children’s names to be placed on the Family Law Watchlist until they reach 18. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 61C, 61DA, 64B(2)(c), 65(1), 65D, 65DAA, 65DAB, 65DAC, 69ZT, 121 |
| Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Bilz & Breugelman [2013] FamCA 578 Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172 Bondelmonte v Bondelmonte (2016) 259 CLR 662 Boyce & Boyce [2015] FamCAFC 60 CDJ v VAJ… |
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- Case
- [2020] FamCA 755
- Decision Date
CaseChat Overview and Summary
The court was required to determine the living arrangements for the children, the extent of parental responsibility each parent would hold, and the specific times the children would spend with each parent. This included detailed provisions for school terms, school holidays, religious festivals, and other special occasions. The court also needed to address communication protocols between the parents, arrangements for changeovers, and specific restraints on parental behaviour, including prohibitions on physical discipline and denigration of the other parent. Furthermore, the court considered provisions for interstate and international travel, as well as measures related to the COVID-19 pandemic.
Harper J discharged all previous parenting orders and made new orders that the children live with the mother and that she have sole parental responsibility. The father was granted specific time with the children, contingent on him obtaining suitable accommodation. The orders established a detailed schedule for the children's time with the father, including alternating weekends and specific periods during school holidays and religious festivals. The court also imposed significant restraints on both parents, prohibiting physical discipline and denigration of the other parent in the children's presence. Provisions were made for communication, medical information sharing, and travel, including a request to place the children on the Family Law Watchlist to prevent international travel without agreement. The court also outlined a dispute resolution process and a timeframe for any applications for costs.
Orders
Orders of the court
1.
All previous parenting orders in relation to the children Y born … 2012 and Z born … 2013 (“the children”) be discharged.
2.
Subject to these Orders, all outstanding applications be otherwise dismissed.
Live with
3.
The children live with the mother.
Parental Responsibility
4.
The mother have sole parental responsibility for the children.
5.
In the exercise of parental responsibility the mother shall:
(a) Inform the father by email or text message of the major issue that has arisen and invite his written comments. Such notice to the father is to be given within seven (7) days of such issue arising;
(b) The father shall give his comments within seven (7) days; and
(c) The mother shall take those comments, if made, into account and then make a final decision and inform the father of that final decision.
Time with the Father
6.
That:
(a) Within sixty (60) days of the date of these Orders the father take all necessary steps to obtain accommodation, with no less than two (2) bedrooms and a right of exclusive occupation;
(b) Thereafter as soon as practicable the father shall provide written evidence to the Independent Children’s Lawyer that he has obtained such accommodation;
(c) Within seven (7) days thereafter the Independent Children’s Lawyer, if satisfied with the evidence provided by the father in accordance with Order 6(b), shall notify the father and the mother in writing that Order 6(a) has been complied with; and
(d) Upon the Independent Children’s Lawyer notifying the parties in accordance with Order 6(c), Orders 7, 8 and 9 shall become operative.
7.
That, subject to Order 6, commencing on the second weekend after this order becomes operative, the children spend time with the father during school term as follows:
(a) Each alternate weekend from completion of school Friday to commencement of school Monday;
(b) That in the event that the children are spending time with the father in accordance with Order 8, the time specified in 7(a) shall be suspended for the duration of such time and shall recommence from the first weekend after school returns for the commencement of term after the end of the school holiday period.
(c) Such other times as agreed between the parties.
8.
That subject to Order 6 the father shall spend time with the children during school holidays as follows:
(a) From conclusion of school on the last day of school attendance in Terms 1, 2 and 3 until 9:00 am on the middle Sunday of the school holidays; and
(b) From conclusion of school on the last day of school attendance in Term 4 until 9:00 am on the middle Sunday of the school holidays.
(c) Otherwise as agreed between the parties.
9.
That in the event Orders 7, 8 and 9 become operative, and unless the parties agree otherwise in writing, the father shall use his best endeavours to maintain accommodation of no less than 2 bedrooms and a right of exclusive occupation when the children are in his care.
Religious holidays
10.
That notwithstanding any other Orders, unless otherwise agreed in writing, the children spend time with the mother and father during Religious holidays as follows:
(a) Religious Festival 1 each year with the mother.
(b) Religious Festival 2 each year with the mother.
(c) Religious Festival 3:
(i) In even-numbered years, with the father commencing at 3:00 pm the afternoon of the commencement of Religious Festival 3 and concluding at 9:00 am on the fifth day, and from 9:00 am on the fifth day until the seventh day of Religious Festival 3 with the mother.
(ii) In odd-numbered years, with the mother commencing at 3:00 pm the afternoon of the commencement of Religious Festival 3 and concluding at 9:00 am on the fifth day, and from 9:00 am on the fifth day until the seventh day of Religious Festival 3 with the father.
(d) Religious Festival 4 commencing at 3:00 pm the afternoon of the commencement of Religious Festival 4 and concluding 9:00 am the day after the holiday concludes in even-numbered years with the mother and odd-numbered years with the father.
(e) Religious Festival 5:
(i) In even-numbered years, commencing at 3:00 pm the afternoon of the commencement of Religious Festival 5 and for four (4) consecutive nights concluding at 9:00 am on the fifth day with the father, and from 9:00 am on the fifth day until the eighth day of Religious Festival 5 with the mother.
(ii) In odd-numbered years, commencing 3:00 pm the afternoon of the commencement of Religious Festival 5 and for four (4) consecutive nights concluding at 9:00 am on the fifth with the mother, and from 9:00 am on the fifth day until the eighth day of Religious Festival 5 with the father.
(f) Religious Festival 6 commencing at 3:00 pm the afternoon of the commencement of Religious Festival 6 until 9:00 am the day after the festival concludes with the father each year.
(g) Religious Festival 7:
(i) In even-numbered years, commencing at 3:00 pm the afternoon of the commencement of Religious Festival 7 and for four (4) consecutive nights concluding at 9:00 am on the fifth day with the mother, and from 9:00 am on the fifth day until the ninth day of Religious Festival 7 with the father.
(ii) In odd-numbered years, commencing at 3:00 pm the afternoon of the commencement of Religious Festival 7 and for four (4) consecutive nights concluding at 9:00 am on the fifth day with the father and from 9:00 am on the fifth day until the ninth day of Religious Festival 7 with the mother.
(h) Religious Festival 8 commencing at 3:00 pm the afternoon of the commencement of Religious Festival 8 and concluding 9:00 am the day after the holiday concludes in odd-numbered years with the father and even-numbered years with the mother.
Other Special Occasions
11.
That notwithstanding any other Orders, the children shall spend the following times with the Father:
(a) On Father's Day from 9:00 am until 5:30 pm;
(b) On the father's 1st birthday, when the children are not otherwise spending time with the father in accordance with these Orders, and his birthday falls on a school day, from the conclusion of school until 6.30 pm or otherwise from 11:00 am until 5:30 pm if such a day is not a school day;
(c) On the father's 2nd birthday, when the children are not otherwise spending time with the father in accordance with these Orders, and his birthday falls on a school day, from the conclusion of school until 6:30 pm or otherwise from 11:00am until 5:30 pm if such a day is not a school day;
(d) Such other times as agreed between the parents.
12.
That notwithstanding any other Orders the children's time with the father be suspended and the children live with the mother at the following times:
(a) On Mother's Day from 9:00 am until 5:30 pm;
(b) On the mother's 1st birthday, when the children are not otherwise living with the Mother in accordance with these Orders, and her birthday falls on a school day, from the conclusion of school until 6:30 pm or otherwise from 11:00 am until 5:30 pm if such a day is not a school day;
(c) On the mother's 2nd birthday, when the children are not otherwise living with the Mother in accordance with these Orders, and her birthday falls on a school day, from the conclusion of school until 6:30 pm or otherwise from 11:00 am until 5:30 pm if such a day is not a school day.
Changeover
13.
That where the father’s time with the children commences at the conclusions of school, changeovers shall take place at school, or as otherwise agreed between the parties in writing.
14.
That for the purposes of changeovers which do not occur at school, collection and delivery of the children shall occur at the parking area of K Shopping Centre, or such other location as the parties agree in writing.
15.
That:
(a) where possible the parties shall use their best endeavours to organize for a third party to collect and deliver the children at the commencement and conclusion of the time;
(b) the parties shall inform the other party of the name of the person who will be collecting or delivering the children pursuant to this Order 13 by text message.
16.
That the parties may at any time by agreement in writing change the location or manner of changeover.
Restraints
17.
That neither party shall use physical discipline when disciplining either of the children.
18.
That neither party shall denigrate the other party to or in the presence of or hearing of either of the children and shall use their best endeavours to ensure that no third party denigrates a parent to or in the presence of or hearing of either of the children.
19.
That the parties be and are hereby restrained from discussing the proceedings with either of the children or within their presence or hearing or from showing either child any document pertaining to the proceedings and they shall use their own best endeavours to ensure that no other person does so.
Communication
20.
That each of the parties shall be at liberty to communicate with the children by telephone, Skype, WhatsApp or other such electronic communication when they are in the other party’s care and, failing agreement, such electronic communication to be each Tuesday or Thursday between 6:00 pm and 7:00 pm.
21.
That unless otherwise specified in these Orders, or otherwise agreed in writing, the parties shall communicate with each other by email or text message.
22.
That each party keep the other party informed as to any other matter relevant to the welfare of the children including but not limited to the children receiving medical attention, being prescribed medication or attending any health practitioners.
23.
That subject to Orders 3 and 4, in the event that either or both children are hospitalized or suffer a medical emergency or major illness, the party in whose care the children then are shall inform the other party as soon as practicable and not less than twelve (12) hours after such hospitalization or emergency or diagnosis and shall authorize any medical practitioner to provide the other party with all information that he or she may request.
24.
That the mother shall authorise all health and medical practitioners to provide all information as to the children’s health to both parties as either party may require or may be requested directly by either party of the treating practitioner.
25.
That should either of the children be unwell while in either party’s care and require the administration of medication, then that party shall advise the other party at the time of changeover of any medication recently given or required to be given while the unwell child is in the other party’s care.
26.
That the parties shall keep each other informed of any change to their residence, although neither party shall be obliged to furnish their residential address to the other party, but must furnish an address at which the children can be collected during an emergency, together with a contact telephone number and personal email addresses and notify the other party within twenty-four (24) hours of any change.
Other matters
27.
That the parties shall continue to engage with the P Services and facilitate the children's attendance at such program until such time as the manager of the program determines that the parties and/or the children are no longer required to attend.
28.
That leave is given to the Independent Children’s Lawyer to provide a copy of these Orders and reasons for judgment to:
(a) Ms B, Psychologist;
(b) Ms C, Psychologist; and
(c) The Manager of the P Services.
29.
That leave is given to the Independent Children’s Lawyer to provide a copy of these Orders to the Principal of Suburb R School.
30.
That, subject to Order 29, both parties and their respective partners are entitled to attend all events involving the children including:
(a) Sporting events;
(b) School graduations and award ceremonies;
(c) Extracurricular activities that allow for parental attendance; and
(d) School functions that allow for parental attendance including but not limited to concerts, assemblies, sports days, canteen duties and social functions and the party who has the children in their care on the day of such activities will be responsible for their day to day care at such event and their transportation to and from such event.
31.
If both the mother and the father are present at any events referred to in Order 30, unless they agree otherwise in writing:
(a) They are to take all necessary steps to remain no less than 50 metres from each other;
(b) Neither party shall speak in a hostile or aggressive manner towards the other party; and
(c) Neither party shall physically restrain either of the children from approaching the other party.
32.
That each party shall take all necessary steps to organise separate parent teacher interviews with the school attended by the children, so that they do not attend such interviews together.
33.
That each party be entitled to obtain directly from any school attended by the children, copies of any reports, notices, school photos or other relevant verbal or written advice affecting the education and welfare of the children, at the cost of the requesting party.
34.
That the mother shall ensure, including by any necessary authorisations, that Suburb R School and any other school attended by children shall include the father on “Skoolbag” and “Seesaw” and any other app, electronic or internet platform that the school uses to communicate information to parents including access through the school “Parent Portal”.
Travel
35.
Both parties be permitted to take the children interstate during the time that the child is in their care provided the travelling party has given the other party thirty (30) days written notice of the proposed travel.
36.
That all travel arrangements for the children are to be made during their respective time with each parent unless otherwise agreed between the parents in writing.
37.
Unless otherwise agreed between the parties in writing, the mother and father, by themselves, their servants or their agents are restrained from removing or attempting to remove the children from the Commonwealth of Australia.
38.
The Court requests that the Australian Federal Police place the name of the children, Y (born … 2012) and Z (born … 2013) on the Family Law Watchlist at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia until the children attain the age of 18 years.
39.
The Marshal and all offices of the Australian Federal Police and the police forces are requested and authorised to give effect to these Orders.
40.
That in the event the parties agree in writing to permit either party to travel outside the Commonwealth of Australia with the children, the parties shall take all necessary steps to cause the temporary removal of the names of the children from the Family Law Watchlist between the dates agreed upon by the parties.
41.
That the mother will retain the children’s passports and, in the event the parties agree for the father to travel internationally with the children, will provide the passport to the father within forty-eight (48) hours of being requested to do so but no sooner than fourteen (14) days prior to the date of departure and on the father’s return from travel with the children, he will return the passport to the mother within seven (7) days of such travel.
42.
Unless otherwise agreed in writing, within thirty (30) days prior to the expiration, or after the loss or theft, of the passport of either child, the parties shall take all necessary steps, including providing any necessary authorisations, and co-operate to procure the renewal or replacement of such passport
COVID-19
43.
At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.
44.
Without prejudice, the father may at any time determine at his sole discretion that by reason of the COVID-19 pandemic, including government restrictions, he is unable to spend any time with child specified in these Orders.
45.
That both parties shall use their best endeavours to communicate with reasonable regularity in accordance with these orders, to seek agreement on the management of issues affecting either child arising from the COVID-19 pandemic.
46.
That, notwithstanding Order 18, during any period of mandatory quarantine these Orders so far as they relate to the father spending face to face time with the children, be suspended, and in lieu thereof the father communicate with the children by way of electronic communication that permits the father and children to see each other such as Skype, WhatsApp, Zoom and Facetime as requested by the father once per day, and unless otherwise agreed, between 6:00 pm and 7:00 pm. The parties are to do all things necessary to facilitate this communication and the father and children are to be given privacy during the communications.
47.
That during any period of mandatory self-isolation imposed on either party:
(a) The isolated party communicate as soon as practicable that a period of mandatory self-isolation has been imposed to the other party.
(b) If the mandatory self-isolation of an isolated party includes the children, then these Orders for the other party to have face to face time, or live, with the children are suspended for the duration of the mandatory self-isolation period. During any such period, communication shall take place between the parties in accordance with the procedure referred to in Order 5(a) and Order 43 for the other party to communicate with the children.
(c) If the mandatory self-isolation of an isolated party does not include the children, then these Orders for the isolated party to have face to face time, or live, with the children are suspended for the duration of the mandatory self-isolation period. During any such period, communication shall take place between the parties in accordance with the procedure referred to in Order 5(a) and Order 43 for the other party to communicate with the children.
Disputes or Variations
48.
The process to be used for resolving disputes about the interpretation, implementation or enforcement of Orders 1 to 45 shall be as follows:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
49.
Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
50.
Pursuant to sections 65DA(2) and 62B of the Act, 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.
Costs
51.
If any party seeks an order for costs, an appropriate application to the Court may be made within twenty-eight (28) days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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