FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRENGOVE & CARLISLE | [2014] FCCA 809 |
| Catchwords: FAMILY LAW – Children – three children, one with special needs – father seeks unsupervised time – best interests – findings that father has problem with alcohol, anger and violence – supervised time to continue with guillotine order – father able to approach the Court after 12 months if he addresses welfare concerns – difficulties associated with ongoing supervision considered – sole parental responsibility order in favour of mother. |
| Legislation: Family Law Act 1975, Part VII, ss.68LA, 60A to 70Q, 60B, 60CA, 60CC, 65DA, 64B, 65D, 61DA, 65DAA |
| P & P (1995) FLC 92-615 Mazorski & Allbright (2007) 37 Fam LR 518 Guidelines for Independent Children’s Lawyers (6 December 2007) |
| Applicant: | MR TRENGOVE |
| Respondent: | MS CARLISLE |
| File Number: | BRC 10128 of 2012 |
| Judgment of: | Judge Purdon-Sully |
| Hearing dates: | 10 & 11 December 2013 |
| Date of Last Submission: | 11 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 23 April 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Self represented |
| Counsel for the Independent Children’s Lawyer: | Mr G Andrew |
| Independent Children’s Lawyer: | Rice Naughton Buckley |
ORDERS
That all previous Orders and Parenting Plans be discharged.
Parental responsibility
That the mother have sole parental responsibility for the major long term issues affecting the children, [X] born [omitted] 2004, [Y] born [omitted] 2006 and [Z] born [omitted] 2007 (“the children”).
That except in an emergency situation, prior to making any long term decision in relation to the children:
(a)the mother will give the father two (2) weeks written notice of the decision she proposes to make and the basis for her proposed decision;
(b)the father will respond to the mother if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving the mother’s notice;
(c)the mother will consider any feedback given by the father by reference to the best interests of the child/children; and
(d)the mother will make any final decision concerning the major long term issue and will inform the father of her decision in writing within seven (7) days.
Living arrangements
That the children live with the mother.
Time with the father
That the children shall spend time with the father as follows:
(a)each alternate Saturday at [omitted] from 9.00am to 12.00 noon; and
(b)such time is to be supervised by the maternal grandmother, Mr H or the mother.
That for the purposes of the children’s time with the father in accordance with Order 5(a) hereof:
(a)the father shall provide written confirmation by text message to the maternal grandmother by no later than 8.00am on the Saturday of the scheduled time with the children, by the father sending a text message to the phone number [omitted], and failing…
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- TRENGOVE & CARLISLE [2014] FCCA 809
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- [2014] FCCA 809
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CaseChat Overview and Summary
The court's reasoning focused on establishing orders that it considered to be in the best interests of the children. It discharged all previous orders and parenting plans, granting the mother sole parental responsibility for major long-term issues affecting the children. The mother was also ordered to have the children live with her. Specific provisions were made for the children to spend time with the father, including supervised visits on alternate Saturdays, with strict conditions regarding notice and attendance. Communication between the parents and children was also regulated, with emphasis on email for parental communication and specific times for telephone calls initiated by the children.
Further orders addressed the parents' conduct, prohibiting denigration of each other or their families in front of the children and requiring immediate removal from such environments if a third party engaged in such behaviour. The court also mandated that neither parent discuss the proceedings with the children and that they maintain updated contact details. The mother was directed to inform the father of the children's health issues, and both parents were authorised to obtain information from the children's educational and medical providers. The father was restrained from consuming alcohol for 24 hours prior to and during any time spent with the children. Finally, the parties were ordered to undertake a Parenting Orders Program, with detailed requirements for participation and compliance, and the Independent Children's Lawyer was discharged.
Orders
Orders of the court
1.
That all previous Orders and Parenting Plans be discharged.
Parental responsibility
2.
That the mother have sole parental responsibility for the major long term issues affecting the children, [X] born [omitted] 2004, [Y] born [omitted] 2006 and [Z] born [omitted] 2007 (“the children”).
3.
That except in an emergency situation, prior to making any long term decision in relation to the children:
(a) the mother will give the father two (2) weeks written notice of the decision she proposes to make and the basis for her proposed decision;
(b) the father will respond to the mother if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving the mother’s notice;
(c) the mother will consider any feedback given by the father by reference to the best interests of the child/children; and
(d) the mother will make any final decision concerning the major long term issue and will inform the father of her decision in writing within seven (7) days.
Living arrangements
4.
That the children live with the mother.
Time with the father
5.
That the children shall spend time with the father as follows:
(a) each alternate Saturday at [omitted] from 9.00am to 12.00 noon; and
(b) such time is to be supervised by the maternal grandmother, Mr H or the mother.
6.
That for the purposes of the children’s time with the father in accordance with Order 5(a) hereof:
(a) the father shall provide written confirmation by text message to the maternal grandmother by no later than 8.00am on the Saturday of the scheduled time with the children, by the father sending a text message to the phone number [omitted], and failing receipt of same the father shall forego his time with the children that weekend; and
(b) in the event of wet weather the children will spend time with the father at the McDonalds at [address omitted], with the father to confirm same at the time of providing his notice of intention to spend time with the children pursuant to Order 5(a) hereof.
7.
That in the event that the father fails to attend any visit with the children which are to occur pursuant to Order 5(a) hereof, except for emergent circumstances or illness of the father, then the time that the children shall spend with the father shall cease.
Communication
8.
That the children communicate with the father as agreed between the parties and failing agreement as follows:
(a) by telephone between 6.00pm and 6.30pm each Wednesday with the mother to cause the children to initiate the call;
(b) by email at all reasonable times; and
(c) by post.
9.
That in the event that the children are unable to telephone the father on Wednesdays in accordance with Order 8(a) hereof, the mother shall notify the father of same by text message and shall facilitate the children phoning the father the following evening, being Thursday between 6.00pm and 6.30pm.
10.
That neither parent will denigrate the other, their family, their partner or their friends to, or in front of, or within the hearing of the children and shall direct third parties to refrain from denigrating either party or their family, their partner or their friends to, or in front of, or within hearing of the children and failing their compliance with such a direction shall remove the children from that environment immediately.
11.
That neither parent shall discuss these proceedings with the children.
12.
That each parent keep the other parent informed at all times of their residential address and a contact telephone number and an email address and are to notify the other parent within twenty four (24) hours of a change.
13.
That the parties will communicate about issues regarding the children by email.
Health and education
14.
That the mother shall inform the father as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children.
15.
That by this Order the mother does authorise and direct [W] School or any other educational institution or extra-curricular organisation upon which the children may attend to provide to the father, at his expense (if any), such information and documentation as may be requested by him from time to time.
16.
That by this Order the mother does authorise and direct any medical or associated practitioner providing treatment to the children to provide to the father, at his expense (if any), such information and documentation as may be requested the father from time to time.
17.
That the mother be granted leave of the Court to provide a copy of these Orders to [W] School or any other educational institution or extra-curricular organisation upon which the children may attend.
Other Orders
18.
That the father be restrained from consuming alcohol for twenty four (24) hours prior to and during any period when the children are in his care.
19.
That the parties shall undertake a Parenting Orders Program at Relationships Australia at Chermside.
20.
That the parties, within seven (7) days of the date of service upon them of these Orders, shall contact the Parenting Orders Program Coordinator (or nominee) for intake into the Program.
21.
That the parties shall comply with any reasonable direction of the Program Coordinator and in particular:
(a) attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;
(b) advise the Program Coordinator of their contact telephone number and advise the Program Coordinator of any change in that number;
(c) attend and participate in any program as requested including attending referrals to treating health professionals as recommended by the Program Coordinator (provided that either party may refuse at their election to participate in joint sessions); and
(d) in the event that either party refuses or fails to attend the program or any part thereof without reasonable excuse or refuses to accept a reasonable direction of the Program Coordinator, then the matter may be relisted by either party on the giving of twenty four (24) hours’ notice.
22.
That for the purposes of the Program the parties shall provide a copy of these Orders to the Program Coordinator together with the family report of Ms B prepared for the purpose of parenting proceedings.
23.
That each parent will provide the other parent with written evidence that they have completed the Program to the satisfaction of the Program Coordinator.
24.
That the Independent Children’s Lawyer be discharged.
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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