Vasiliou & Douglas
[2022] FedCFamC1F 988
Federal Circuit and Family Court of Australia
(DIVISION 1)
Vasiliou & Douglas [2022] FedCFamC1F 988
File number(s): MLC 403 of 2020 Judgment of: JOHNS J Date of judgment: 14 October 2022 Catchwords: FAMILY LAW – CHILDREN – interim orders – parental responsibility – with whom a child should spend time – where the respondent mother has failed to engage with proceedings – where the applicant and the second respondent have reached agreement as to the interim arrangements for the child’s care – where the parties have engaged in a therapeutic pathway to re-establish the child’s relationship with her biological father Legislation: Family Law Act 1975 (Cth), s 60CC Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 14 October 2022 Place: Melbourne Counsel for the Applicant: Ms Hilton Solicitor for the Applicant: Velocity Legal The First Respondent: No Appearance Counsel for the Second Respondent: Mr Taha Solicitor for the Second Respondent: AMT Lawyers & Associates The Independent Children's Lawyer: Ms Smith (solicitor) appearing Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 403 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VASILIOU
Applicant
AND: MS DOUGLAS
First Respondent
MR SHEFFIELD
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
14 OCTOBER 2022
BY CONSENT THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Procedural
1.All prior parental responsibility and live with/spend time parenting orders save for Order 13 of the Orders made 20 July 2022 be discharged.
Parental Responsibility
2.The Applicant have sole parental responsibility for X born in 2015 (the child) PROVIDED ALWAYS THAT the Applicant keep the Second Respondent informed of significant long term decisions that he makes in relation to the child and actively seeks the Second Respondent’s input on such issues.
3.For the purpose of order 1:
(a)before any such long term decisions are made in respect of the child:
(i)the Applicant shall advise the Second Respondent by email of his proposal relating to the child;
(ii)if the Second Respondent wishes to comment on the Applicant’s proposal (or if the Second Respondent has any proposal he wishes to make relating to the child on this issue) he shall, within seven (7) days after the date of the Applicant’s email, advise the Applicant by one email (to the email address from which the Applicant sent his communication) of his views.
(b)upon receipt of any comment or proposal by the Second Respondent, the Applicant shall give consideration to the Second Respondent’s views;
(c)after the Applicant has considered the Second Respondent’s comments, he shall make a decision and advise the Second Respondent by email of the outcome immediately after making that decision; and
(d)if the Second Respondent does not respond by email as provided in sub paragraph (a)(ii), the Applicant shall be entitled to presume that the Second Respondent does not wish to be involved and he may decide the issue.
Living Arrangements
4.During the school term:
(a)the child live with the Applicant.
(b)commencing from the date of these Orders the child spend time with the Second Respondent in the following 4 week cycle:
(i)each Wednesday from the conclusion of school (or 3:30pm if a non-school day) to 7pm; and
(ii)in weeks 1, 2 and 3 from 9am to 6pm on Saturday.
(c)commencing from Term 1, 2023 until Term 3, 2023 the child spend time with the Second Respondent in the following 4 week cycle:
(i)each Wednesday from the conclusion of school (or 3:30pm if a non-school day) to 7pm; and
(ii)in weeks 1, 2 and 3 from the conclusion of school (or 3:30pm if a non-school day) on Friday to 6pm on Saturday.
(d)commencing from Term 3, 2023 the child spend time with the Second Respondent in the following 4 week cycle:
(i)each Wednesday from the conclusion of school (or 3:30pm if a non-school day) to 7pm;
(ii)in weeks 1 and 3 from the conclusion of school (or 3:30pm if a non-school day) on Friday to 6pm on Sunday.
(e)as otherwise agreed between the parties in writing including text messages.
5.For the purpose of Order 4:
(a)week 1 shall commence on 26 September 2022; and
(b)the cycle will thereafter continue indefinitely as if uninterrupted by the school holiday
School Term and Long Summer Holidays
6.During the 2022 school term holidays, the child live with the Applicant and spend time with the Second Respondent as set out in Order 4(b).
7.During the 2022/2023 long summer holidays the child live with the Applicant and spend time with the Second Respondent:
(a)until 2 January 2023 in accordance with the contact arrangements provided for in Order 4(b).
(b)from 2 January 2023 in accordance with the contact arrangements provided for in Order 4(c).
8.During the school term holidays in the 2023 school year the child live with the Applicant and spend time with the Second Respondent for a period of 2 nights in each week at times to be agreed and failing agreement from 5pm on the first Monday of the school holidays until 6pm the following Wednesday.
9.As otherwise agreed between the Applicant and Second Respondent in writing including text messages.
Special Occasions
10.Notwithstanding the preceding paragraphs the child spend time with the parties on special occasions as follows:
(a)for Christmas:
(i)in even numbered years with the Applicant from 11am on 24 December to 11am on 25 December and with the Second Respondent from 11am to 7pm on 25 December; and
(ii)in odd numbered years with the Applicant from 11am on 24 December to 3pm on 25 December and with the Second Respondent from 3pm to 7pm on 25 December.
(b)for Father’s Day:
(i)with the Applicant from 5pm on the day prior to Father’s Day until 3pm on Father’s Day;
(ii)with the Second Respondent from 3pm to 7pm on Father’s Day.
(c)the child spend time with the Applicant and/or Second Respondent on her birthday if she is not already in that their care as follows:
(i)if the child’s birthday falls on a school day, then from after school (or 3.30pm) until 5:30pm; and
(ii)if the child’s birthday falls on a non-school day, then from 1pm to 6pm.
(d)the child spend time with the Applicant and Second Respondent on their birthdays if they are not already in that party’s care as follows:
(i)if the Applicant and Second Respondent’s birthday falls on a school day, then from after school (or 3.30pm) until 5:30pm; and
(ii)if the Applicant or Second Respondent’s birthday falls on a non-school day, then from 1pm to 6pm.
Changeovers
11.Changeover take place:
(a)at the child’s school where applicable;
(b)otherwise the Second Respondent shall collect the child from the Applicant’s residence at the commencement of his time and deliver the child to the Applicant’s residence at the conclusion of time;
(c)as otherwise agreed between the parties in writing.
Facetime/Telephone Communication
12.The Applicant and Second Respondent be permitted to communicate with the child by telephone, Facetime or other electronic means as follows:
(a)on such times as may reasonably be requested by the child or parents; and
(b)the party who has the care of the child to facilitate contact to the other party’s mobile.
Communication
13.The Applicant and Second Respondent are to telephone, text message or email for the purpose of communicating all matters relating to:
(a)the care, welfare and development of the child;
(b)for the purposes of any proposed variation to these Orders; and
(c)other commitments and activities of the child.
14.The Applicant and Second Respondent notify the other party in writing of any changes to their email and telephone contact details within 48 hours of any such change and provide 21 days written notice of any proposed change to their home address.
Education and Extra Curricular Activities
15.The Applicant and Second Respondent be at liberty to:
(a)be listed as the primary emergency contact on the enrolment forms for the child’s school;
(b)communicate with the child’s school and request copies at their own expense of notices, reports, newsletters, photographs and similar correspondence usually provided to parents; and
(c)attend all child’s school functions including concerts, plays, fetes and sporting activities usually attended by parents.
16.The Applicant and Second Respondent will each ensure the child attend all extracurricular and social activities that occur when they are in their care including but not limited to sports and external school activities.
Medical Treatment
17.The Applicant and Second Respondent:
(a)forthwith notify the other in writing in the event the child attend upon any medical practitioner and provide details of the diagnosis and any treatment prescribed;
(b)be authorised, at their own expense, to obtain information from any medical or allied health professional that the child attend upon and be permitted to communicate with such medical or allied health professional; and
(c)these Orders shall be evidence of any authorisation required.
Passports and Travel
18.The Applicant be authorised and permitted to apply for and receive an Australian passport for the child.
19.The Applicant and Second Respondent be permitted to travel with the child interstate during times the child are in their care pursuant to these Orders subject to the travelling party provides the non-travelling party with 7 days prior notice of their intention to travel and the address at which the child shall be residing.
20.The Applicant be permitted to travel with the child outside Australia for one occasion for a period of up to 18 days subject to compliance with the following conditions:
(a)the Applicant provides the Second Respondent:
(i)with 45 days written notice of their intention to travel;
(ii)one month prior to travel, the Applicant provides the Second Respondent with the following:
A.copy of the itinerary;
B.copy of airline tickets;
C.evidence of travel medical insurance; and
D.the address at which the child shall be residing and a contact telephone number on which the travelling party can be contacted.
(b)the Applicant will facilitate the other parties having reasonable telephone/skype/email communication with the child whilst they are away.
(c)the Applicant will facilitate make up time between the Second Respondent and the child for all time lost pursuant to these Orders due to the overseas travel noting that overnight time shall occur on weekends only.
Engagement with Ms B
21.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Ms B or such other family report writer as may be agreed (“the single expert”) is appointed as the single expert to prepare a Family Report to be released on or about September 2023 enquiring into and report upon issues relating to the welfare of the child.
22.The Applicant and the Second Respondent shall each pay one-half of the single expert’s fees.
23.In the even the child becomes distressed and cannot be soothed, the Second Respondent is to contact the Applicant and facilitate the child’s return to the Applicant’s care.
Information to be Provided by Second Respondent
24.Within 14 days the Second Respondent provide to the Applicant:
(a)details and evidence of the child’s indigenous background to enable this information to be supplied to the Department of Education; and
(b)his intention with respect to financial support for X.
Injunctions
25.The parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling or otherwise denigrating the other party, their partner or family to or in the presence or hearing of the child or permitting anyone else to do so; and
(b)discussing these proceedings with or in the presence or hearing of the child or permitting anyone else to do so.
Further Hearing
26.The Day 1 Trial listed for 2 November 2022 be vacated.
27.All extant applications be adjourned to a Case Management Hearing at 9:30am on 7 December 2023.
AND THE COURT NOTES
A.The Applicant and Second Respondent acknowledge the agreement to swap time the Second Respondent’s time with X from 1 October 2022 to occur instead on 24 October 2022 due to X travelling interstate with the Applicant.
B.It is the intention of the Applicant and Second Respondent to enrol X into extracurricular activities on Wednesday afternoons to be facilitated by the Second Respondent at the expense of the Second Respondent.
C.That it is the intention of the Applicant to facilitate additional/extended time between the child and the Second Respondent consistent with her developmental and emotional needs and wellbeing.
D.That pursuant to s.65DA(2) of the Family Law Act, 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 Fact Sheet, attached hereto 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vasiliou & Douglas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
The matter of Vasiliou & Douglas & Sheffield comes before the Court today in relation to the future parenting arrangements for the child, X, who is almost seven years. The matter was originally listed for a Case Management Hearing on 2 November 2022 but has been called on earlier following an approach made to my Chambers.
The parties are the applicant, Mr Vasiliou, who shared a house with the first respondent, Ms Douglas, X’s mother.
The second respondent, Mr Sheffield, is the child’s biological father.
The mother and the child resided at the home of the applicant for a period of time between 2016 and 2018. From the child’s perspective, the applicant became her father figure, and it is indicated by the applicant that at all times, the child has referred to him as her father. Since about February of 2019, the child has resided in the applicant’s care.
These proceedings commenced in 2020 and a series of interim orders have been made in relation to the child’s care arrangements. The mother has participated in the proceedings at various times, although she has not appeared before the Court today and, indeed, has failed to attend other Court events. Final orders were made on 20 July 2022 that the mother spend time with the child as agreed between she and the applicant; those orders were made on an undefended basis.
Since that time the applicant and second respondent have worked towards enabling X to develop a relationship with her biological father. To that end, they have been engaged in therapeutic assistance and have also attended for reportable therapeutic counselling with various specialists; most recently, Ms B, who has prepared a report in the matter which is annexed to her affidavit sworn 12 July 2021.
Following the release of that report, the parties have engaged in a private mediation. As a result of that process, there is agreement between the applicant and the second respondent as to the future arrangements for X’s care and, more particularly, future arrangements for X to spend time with the second respondent.
The orders today sought by the applicant and the second respondent are interim orders which will pave the way for the child to have regular time with the second respondent. They are orders that are supported by the Independent Children’s Lawyer.
The position of the mother in relation to these orders is not known. She has not attended Court this day to indicate her position; it was submitted that the applicant has informed the mother of the proposed orders and of the listing of the matter. Given the history of the mother’s failure to engage in the proceedings I propose to make the interim orders as sought by the applicant and the second respondent.
Having regard to the material before the Court, I am satisfied that the proposed interim orders are appropriate and in the child’s best interests having regard to the considerations set out in section 60CC of the Family Law Act 1975 (Cth). Accordingly, I will make orders as sought by the applicant and the second respondent.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 14 October 2022
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