Vancliffe & Delamar

[2021] FCCA 393

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vancliffe & Delamar [2021] FCCA 393  

File number:	DNC 643 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	15 February 2021
Catchwords:	FAMILY LAW – parenting – concerning a child who is five years old – where pursuant to interim orders the child lives with the mother and spends time with the father – where the mother seeks final orders in terms of the interim orders – where the father has not participated in the hearing – court satisfied it is appropriate to make final orders in terms of interim orders
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	7
Date of last submissions:	15 February 2021
Date of hearing:	15 February 2021
Place:	Darwin
Solicitor for the Applicant:	Ms S Edwards of Central Australian Women’s Legal Service Inc.
Counsel for the Respondent:	No appearance by the Respondent

ORDERS

DNC 643 of 2018

BETWEEN:

MS VANCLIFFE

Applicant

AND:

MR DELAMAR

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	15 FEBRUARY 2021

THE COURT ORDERS:

1.That the mother and father have equal shared parental responsibility for the child X, born in 2016.

2.That the child live with the mother.

3.That until the conclusion of the 2020 school year, the child is to spend time with the father as follows;

(a)From 10:00am each Thursday until 10:00am on the following Sunday, and

(b)At any further or additional time as agreed by the parties in writing.

4.That for the duration of the 2020-2021 summer holidays, the child is to spend time with the father on a week-about basis with changeovers to occur on Mondays as follows;

(a)On weeks where the child is attending B Child Care Centre, the child is to be dropped off by the parent who has care of the child to the Child Care Centre on Monday morning and collected by the other parent that afternoon.

(b)On weeks where the child is not attending child care, changeover is to occur at 5:00pm on Monday at the mother’s house.

5.From the commencement of the first term of the 2021 school year the child is to spend time with the father as follows;

(a)In Week A: From the conclusion of school on Tuesday until the commencement of school on Friday, and;

(b)In Week B: From the conclusion of school on Friday until the commencement of school on the following Monday

6.The child is to spend one week of each school holiday period excluding the summer holiday period with each parent as agreed in writing between the parties, but failing written agreement;

(a)The child is to spend the first week of the school holidays with the father in odd-numbered years, and;

(b)The second week in even-numbered years.

7.That all changeovers which align with the beginning or end of the child’s school day are to take place at the school in which he is enrolled.

(a)Any changeover which does not align with the beginning or end of the child’s school day is to occur at the home of the mother, with only the parents and the child to be in attendance

8.That the mother is permitted to travel with the child to Queensland for the purposes of completing her practical placements for the completion of her course of study on no more than four occasions for a period of no more than one week during the 2021 calendar year, and;

(a)The father may choose to travel to Queensland during these periods in order to continue his contact with the child under these Orders;

(b)Should the father choose not to travel to Queensland during these periods, then the father’s time is suspended while the mother and the child are in Queensland, and;

(c)The mother is to provide the father with her schedule for her practical placements within one week of the schedule being released.

Special Occasions

9.The mother’s time will be suspended as follows;

(a)On Father’s Day with the child to spend time with the father from 9:00am to 6:00pm;

(b)On the child’s birthday with the child to spend time with the father as follows;

(i)If the birthday falls on a school day when the child would normally be in the care of the mother, from the completion of the child’s school day until 6:00pm;

(ii)If the birthday falls on a day when the child would not normally be at school but would normally be in the care of the mother, from 10:00am to 2:00pm.

(c)On the father’s birthday with the child to spend time with the father as follows;

i.If the birthday falls on a school day when the child would normally be in the care of the mother, then from the conclusion of school on the father’s birthday until the commencement of school the following day (or 9:00am if the following day is not a school day);

ii.If the birthday falls on a day when the child would not normally be at school but would normally be in the care of the mother, from 4:00pm on the father’s birthday until the commencement of school on the following day (or 9:00am if the following day is not a school day).

(d)In odd-numbered years;

iii.From 12:00pm on 23 December until 12:00pm on 30 December;

iv.From 12:00pm on Good Friday until 12:00pm on Easter Monday;

10.The father’s time will be suspended as follows;

(a)On Mother’s Day, with the child to be returned to the mother at 9:00am;

(b)On the child’s birthday with the child to spend time with the mother as follows;

(i)If the birthday falls on school day when the child would normally be in the care of the father, from the completion of the child’s school day until 6:00pm;

(ii)If the birthday falls on a day when the child would not normally be at school but would normally be in the care of the father, from 10:00am to 2:00pm.

(c)On the mother’s birthday with the child to spend time with the mother as follows;

(i)If the birthday falls on a school day when the child would normally be in the care of the father, then from the conclusion of school on the mother’s birthday until the commencement of school the following day (or 9:00am if the following day is not a school day);

(ii)If the birthday falls on a day when the child would not normally be at school but would normally be in the care of the father, from 4:00pm on the mother’s birthday until the commencement of school on the following day (or 9:00am if the following day is not a school day).

(d)In even-numbered years;

(i)From 12:00pm on 23 December until 12:00pm on 30 December, and;

(ii)From 12:00pm on Good Friday until 12:00pm on Easter Monday.

11.That each party be permitted to travel interstate with the child for a period of up to one week on one occasion every twelve months, on the provision of fourteen days’ notice to the other party.

(a)This travel is additional to the mother’s travel with the child under Order 7.

12.That each party be permitted to travel interstate with the child for a period of up to ten (10) days in the event of a death in the family or family emergency, on two occasions every 12 months, on provision of notice to the other party as soon as reasonably practicable.

Specific Issues

13.That each party is restrained and an injunction be issued restraining the parties from consuming illicit substances at all times and from bringing the child into contact with third parties who are using any illicit substance.

14.That the mother be restrained by injunction and an injunction be issued restraining the mother from permitting the child to have any contact with the paternal grandmother, Ms C.

15.That each party is to advise the other party immediately in the event of any serious illness and/or accident or other like emergency any child may suffer while in that party’s care and do all acts and sign all documents as required to allow the other party to discuss the child’s diagnosis and prognosis with the treating medical professional.

16.That both parties shall keep the other informed as to any medical treatment being undertaken by the child at least twenty-four (24) hours prior to the child’s handover, including pharmaceuticals being consumed, and further each party shall keep the other expeditiously informed of any medical appointments of the child, with all medical expenses to be paid for by the parent who has care of the child at the time the expense is incurred, unless otherwise agreed between the parties.

17.That all communication between the parties is to occur by the use of a communication book except in emergency situations, and that both parties have liberty to keep a digital or photographic record of the communication book.

(a)That in emergency situations, the parties may communicate about the child by telephone.

18.That all communication between the parties regarding these Orders or any other element of the parenting of the child is to be in writing and is to be respectful in nature.

19.That communication regarding the parenting of the child is to be between the parties only, and not shared with other people.

20.That the father is to provide basic necessities for the child while the child is in his care, including school uniforms.

b.   That all possessions sent with the child to the father’s house be returned with the child at the conclusion of the father’s time.

21.The parties are to not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the child, nor to allow the child to remain in the presence or hearing of any other party who is denigrating or criticising the other party or their family.

22.The party with whom the child is living with or spending time with at any particular time is responsible for the day to day decisions concerning the care, welfare and development of the child.

23.Each party is responsible for ensuring that the child attends school on time and on all school days while the child is in that party’s care, except in the case of illness or emergency.

24.Each party is authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

25.That the parties are to attend family counselling through an appropriate service in City D on at least two occasions per calendar year to review these Orders and ensure that a respectful co-parenting relationship is maintained.

26.That each party is restrained from introducing the child to any new partner for the first 6 months of the new relationship.

IT IS NOTED:

Pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the consequences that may follow if a person contravenes these orders are attached and are included in these orders.

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.

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

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is a parenting matter concerning a child, X, who is almost five years old.  The parties filed a consent minute for interim orders on 12 November 2020 which were extensive and detailed. The interim orders effectively appeared to be proposed final orders. Ms Edwards, who appears for the applicant mother, seeks final orders in terms of the interim orders.

2. The respondent father did not appear today.  The matter was on for mention.  His absence is unexplained.  His lawyers withdrew in July 2020 and he appeared in person on 5 October 2020. The matter was listed for trial on 12 November 2020.  The necessity for a trial was obviated by the fact that the parties agreed to interim orders on that day which they intended to trial or test, it would appear.  One inference to be drawn from the father’s absence today is that he is content with the orders that were made by consent on 12 November 2020.

3. I asked Ms Edwards to address me about notice of risk matters, as she is obliged to do.  The mother’s notice of risk alleges, in effect, that the child was assaulted by the father and was left with black eyes or bruises.  Ms Edwards’ submission is that the notice of risk is better understood as the mother complaining that the bruising was unexplained.  I asked Ms Edwards if her client had ever pursued those matters with the child welfare authorities. Ms Edwards’ instructions are that this was never pursued.  The mother does not now assert that any bruises were a sign of the father inflicting harm on the child or that the bruises were inflicted by the father. It is not asserted that the child is at any risk.

4. In relation to the allegations of drug use, Ms Edwards instructs me that the father has produced a number of negative drug tests over the past 12 months and the mother is no longer concerned that that is an issue.  The drug tests are not in evidence before me but I rely on Ms Edwards’ submissions in that regard.

5. The notice of risk of the father raises some allegations about the paternal grandmother who he alleges sexually abused him and otherwise is an unsuitable person for the grandchild to spend any time with.  Ms Edwards says that this has been dealt with because there is an injunctive order that the child is not to be brought into contact with the paternal grandmother.

6. There is an allegation of domestic violence and also an allegation about the mother’s mental health which Ms Edwards says has been addressed through counselling and is no longer an issue.

7. That being the case, I propose to make the orders as set out in the minute.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       3 March 2021