FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEBB & GUTHRIE | [2016] FCCA 2285 |
| Catchwords: FAMILY LAW – Parenting – where mother makes allegations of sexual abuse – where no foundation for those allegations – where mother cannot support child’s relationship with the father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT(3), 69ZV |
| Cases cited: Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 Webb & Guthrie [2015] FCCA 1353 WK v SR (1997) FLC 92-787 |
| Applicant: | MR WEBB |
| Respondent: | MS GUTHRIE |
| File Number: | WOC 341 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 11-13 April and 4 May 2016 |
| Date of Last Submission: | 3 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lawrence |
| Solicitors for the Applicant: | Verekers Lawyers |
| Solicitors for the Respondent: | Paladin Law |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
ORDERS
That all previous orders in these proceedings are hereby discharged.
That the Father have sole parental responsibility for the child X, born on (omitted) 2012.
That forthwith the child live with the Father.
That until 3 months from the date of these Orders the child not spend time with the Mother.
That commencing 3 months from the date of these Orders the child spend time with the Mother as follows:
(a)Until the child commences school in 2018:
(i)for a period of five hours on the second Saturday of every calendar month, with such time to be supervised by a professional supervised contact service from 11:00am until 4:00pm, or such other times as available by that service.
(ii)the Mother shall ensure that no member of her family be present during the spend time period as set out in Order 5(a)(i).
(iii)For the purpose of Order 5(a)(i) above, the cost of supervision be borne equally between the parents.
(b)From the time that the child commences school:
(i)During school terms:
A.Each alternate weekend from Friday afternoon from after school until the following Monday morning before school (and with such time to be suspended on any weekend coinciding with Father’s Day).
B.From Friday afternoon after school until the following Monday morning before school on the weekend coinciding with Mother’s Day if not consistent with weekends as set out in Order 5(b)(i)(A).
(ii)For the birthday celebrations of the child if it does not coincide with the period set out in Order 5(b)(i)(A):
A.From 9:00am until 5:00pm if it falls on a weekend;
B.From after school until 7:30pm if it falls on a weekday, with such time to take place within 10 kilometres from the child’s school.
(c)Commencing in the year that the child is in Year 1, during school holidays:
(i)For the first half of each school holidays in years ending in an even numbered year to commence on the last Friday school day of the immediate school term prior to that school holiday…
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- Webb and Guthrie [2016] FCCA 2285
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- [2016] FCCA 2285
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CaseChat Overview and Summary
The central legal issues before the court were to determine the most appropriate parenting orders for the child X, considering the welfare and best interests of the child. This encompassed decisions on who would have sole parental responsibility, where the child would live, the specific arrangements for the child to spend time with each parent, and the communication methods between the parents and the child. The court also had to consider provisions for the exchange of the child, parental communication, and the dissemination of information regarding the child's welfare.
Judge Altobelli ordered that the Father have sole parental responsibility for the child X and that the child live with the Father. The Mother was prohibited from spending time with the child for three months, after which specific supervised time arrangements were to commence, transitioning to more extensive time as the child aged and commenced school. The orders detailed complex schedules for school terms and holidays, including provisions for birthdays and travel restrictions. Further orders addressed communication between the parents and the child, including telephone calls and written correspondence, with specific restrictions on discussing the proceedings or making derogatory remarks about the other parent. Both parents were also ordered to keep each other informed of the child's medical and social welfare, as well as their own contact details. The court also made orders regarding the registration of the Father on the child's birth certificate and appointed the Registrar to execute necessary documents. Any future applications concerning these orders were to be listed before Judge Altobelli in the first instance.
Orders
Orders of the court
1.
That all previous orders in these proceedings are hereby discharged.
2.
That the Father have sole parental responsibility for the child X, born on (omitted) 2012.
3.
That forthwith the child live with the Father.
4.
That until 3 months from the date of these Orders the child not spend time with the Mother.
5.
That commencing 3 months from the date of these Orders the child spend time with the Mother as follows:
(a) Until the child commences school in 2018:
(i) for a period of five hours on the second Saturday of every calendar month, with such time to be supervised by a professional supervised contact service from 11:00am until 4:00pm, or such other times as available by that service.
(ii) the Mother shall ensure that no member of her family be present during the spend time period as set out in Order 5(a)(i).
(iii) For the purpose of Order 5(a)(i) above, the cost of supervision be borne equally between the parents.
(b) From the time that the child commences school:
(i) During school terms:
A. Each alternate weekend from Friday afternoon from after school until the following Monday morning before school (and with such time to be suspended on any weekend coinciding with Father’s Day).
B. From Friday afternoon after school until the following Monday morning before school on the weekend coinciding with Mother’s Day if not consistent with weekends as set out in Order 5(b)(i)(A).
(ii) For the birthday celebrations of the child if it does not coincide with the period set out in Order 5(b)(i)(A):
A. From 9:00am until 5:00pm if it falls on a weekend;
B. From after school until 7:30pm if it falls on a weekday, with such time to take place within 10 kilometres from the child’s school.
(c) Commencing in the year that the child is in Year 1, during school holidays:
(i) For the first half of each school holidays in years ending in an even numbered year to commence on the last Friday school day of the immediate school term prior to that school holiday (with such time to be suspended for the period Christmas Day at 2:30pm until Boxing Day at 8:30pm).
(ii) For the second half of each school holidays in years ending in an odd numbered year to conclude at the commencement date of the school term immediately after that school holiday.
(iii) From Christmas Eve at 12:00pm until Christmas Day at 2:30pm in years ending in an even number.
(iv) From Christmas Day at 2:30pm until Boxing Day at 8:30pm in years ending in an odd number.
(d) For the purpose of Orders 5(b) and 5(c)(iii)-(iv), if the Mother resides more than a total of 2 hour’s travel by car away from the child’s home, the child’s time with the Mother must take place in the Greater Sydney region.
6.
The changeover venue shall be the child’s school if available, but if not available, changeover shall take place at a location nominated by the Mother within a reasonable proximity to the Father’s residence, or alternatively, at the Father’s residence, and the Mother shall:
(a) Nominate a public place within reasonable proximity to the Father’s home; and/or
(b) Nominate a person who is able to facilitate changeover at such public place or the Father’s residence; and
(c) Communicate such details to the Father no later than 72 hours before the proposed changeover.
7.
That from the time the child commences school in 2018, the child have the following parental communication:
(a) Telephone conversation with the Mother between the hours of 6:00pm and 6:30pm on Tuesdays and Thursdays each week when the child is not otherwise spending time with the Mother and to facilitate such telephone calls the Father will have the child available to speak with the Mother;
(b) Telephone conversation with the Mother as the child may request and the Father will facilitate the making of such telephone call;
(c) Reasonable telephone calls with the Father when the child is with the Mother;
(d) Reasonable telephone calls with the Mother when the child with the Father;
(e) Communication from the Mother by way of letters, mail and gifts, and the Father shall be permitted to open such letters, mail and gifts to ensure that such communication does not include denigration of the Father or discussion of these proceedings.
8.
That the Father shall refrain from discussing these proceedings (or any allegations made in the course of these proceedings) and making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children and that the Father shall do all things reasonably necessary to ensure that no other person discusses these proceedings (or any allegations made in the course of these proceedings) or makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.
9.
That the Mother shall refrain from discussing these proceedings (or any allegations made in the course of these proceedings) and making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the children and that the mother shall do all things reasonably necessary to ensure that no other person discusses these proceedings (or any allegations made in the course of these proceedings) or makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children.
10.
That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:
(a) any medical problems or illness suffered by the child whilst in the care of the Father;
(b) any medication that has been prescribed for the child;
(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d) any social, school or religious functions which the child is to attend;
(e) any other matter relevant to the welfare of the child.
11.
That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:
(a) any medical problems of illness suffered by the child whilst in the care of the Mother;
(b) any medication that has been prescribed for the child;
(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d) any social, school or religious functions which the child is to attend;
(e) any other matter relevant to the welfare of the child.
12.
The Father is to keep the Mother informed of his residential address, contact telephone numbers and email address and is to inform her of any change to same within 7 days of such change occurring.
13.
The Mother is to keep the Father informed of her residential address, contact telephone numbers and email address and is to inform him of any change to same within 7 days of such change occurring.
14.
The Mother shall forthwith sign all documents and do all things necessary to cause the Father to be registered as a parent of the child on the Birth Certificate for the child as certified by the New South Wales Registry of Births Deaths and Marriages.
15.
In the event that Mother or Father refuses or neglects to execute any deed, instrument or document that may be considered necessary, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed, instrument or document in the name of such party and to do all acts and things necessary to give validity to the operation of the deed, instrument or document.
16.
Any application to enforce, implement, suspend, set aside or vary these Orders should be listed in the first instance before Judge Altobelli, if he is reasonably available and subject to any application that a parent may wish to make.
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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