FEDERAL CIRCUIT COURT OF AUSTRALIA
| WELTON & WELTON | [2016] FCCA 3509 |
| Catchwords: FAMILY LAW – Interim parenting – future care arrangements – child’s best interests – child’s views – where the child is enmeshed within parental conflict – where there is a degree of collusion between the father and the child – where there is significant undermining of the mother’s parental authority – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAC, 65DAA, 65DAA(5), 69ZX |
| Cases cited: Bennett & Bennett (1991) FLC 92-191 Stevenson & Hughes [1993] FamCA 14 Jones & Dunkel (1959) 101 CLR 298 |
| Applicant: | MS WELTON |
| Respondent: | MR WELTON |
| File Number: | PAC 6035 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 4 April 2016 |
| Date of Last Submission: | 4 April 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 4 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | McPhee Lawyers |
ORDERS
Pending further Order, the parents Ms Welton and Mr Welton shall have equal shared parental responsibility for their children, X born (omitted) 2001 and Y born (omitted) 2003.
Pending further Order, X and Y shall live with their mother.
Pending further Order, X and Y shall spend time and communicate with their father as follows:
(a)For the last two week of the 2016 July school holidays;
(b)For a period during the Christmas/New Year school holiday in each year, as agreed between the parties or failing agreement from 9 January 2017 until 25 January 2017;
(c)By telephone between 6:00PM and 6:30PM each Wednesday and Friday via such telephone number as is advised to the father by the mother and not otherwise.
For the purpose of X and Y spending time with their father, the mother shall deliver the children to or cause the children to travel to the Brisbane airport at the commencement of each period and the father shall return the mother or cause the children to travel to the mother at Sydney airport at the conclusion of each period.
Pending further Order, each of the father and the mother shall be and are hereby restrained from contacting X or Y save in accordance with the Orders above and/or by electronic means provided however, that the other parent is made aware of the communication and its contents and in the case of email that the other parent is copied into the email.
Pending further Order, in the event that the child X should leave the mother’s care, then the father shall not allow or…
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- Case
- [2016] FCCA 3509
- Decision Date
CaseChat Overview and Summary
The court was required to determine the interim parenting orders for the children, including their primary residence, the extent of their time with the non-resident parent, and the communication protocols between the parents and the children. Furthermore, the court addressed the need for parental involvement in the children's education and psychological care, and the process for resolving ongoing disputes.
Judge Harman ordered that the parents share equal parental responsibility for X and Y, with the children to live with their mother. The father was granted specific periods of time with the children during school holidays and regular telephone contact. Crucially, the court imposed restraints on both parents contacting the children except as permitted by the orders, with specific conditions for electronic communication. The court also directed the parents to attend a Child Inclusive Child Dispute Conference with a Family Consultant, who was requested to provide a report to the court. The orders also stipulated that both parents be listed as emergency contacts at the children's schools and have access to their educational and psychological reports, with restrictions on additional psychological or counselling attendance without mutual consent. The matter was adjourned for further directions, with liberty to restore the proceedings if a child was not returned to the mother's care by a specified date.
Orders
Orders of the court
1.
Pending further Order, the parents Ms Welton and Mr Welton shall have equal shared parental responsibility for their children, X born (omitted) 2001 and Y born (omitted) 2003.
2.
Pending further Order, X and Y shall live with their mother.
3.
Pending further Order, X and Y shall spend time and communicate with their father as follows:
(a) For the last two week of the 2016 July school holidays;
(b) For a period during the Christmas/New Year school holiday in each year, as agreed between the parties or failing agreement from 9 January 2017 until 25 January 2017;
(c) By telephone between 6:00PM and 6:30PM each Wednesday and Friday via such telephone number as is advised to the father by the mother and not otherwise.
4.
For the purpose of X and Y spending time with their father, the mother shall deliver the children to or cause the children to travel to the Brisbane airport at the commencement of each period and the father shall return the mother or cause the children to travel to the mother at Sydney airport at the conclusion of each period.
5.
Pending further Order, each of the father and the mother shall be and are hereby restrained from contacting X or Y save in accordance with the Orders above and/or by electronic means provided however, that the other parent is made aware of the communication and its contents and in the case of email that the other parent is copied into the email.
6.
Pending further Order, in the event that the child X should leave the mother’s care, then the father shall not allow or permit the child to be placed into his care or the care of his extended family members (subject to welfare agencies or similar government instrumentalities exercising their powers of placement) and shall immediately upon being contacted by X contact the mother to advise her of that fact and of any information received from X as to her whereabouts.
7.
Pursuant to s.11F of the Family Law Act 1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9:00am on 15 July 2016 and:
(a) The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b) The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c) The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i) Any agreement reached between the parties;
(ii) The issues raised by the parties and which will require determination by the Court;
(iii) Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv) Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
8.
Each party shall forthwith, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to ensure that each parent is recorded with any school attended by the children as a parent and emergency contact person and so that each parent may obtain directly from that school such reports (whether written or oral) or information as they may desire and so that each parent can attend upon and participate in any events at the school to which parents are invited or encouraged to attend.
9.
Each party shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and permit each parent to be fully advised and consulted with respect to any Psychologist, Counsellor or similar professional upon whom the children have attended and to obtain from them any report that has been provided by them to date and that neither party shall allow, cause or permit X to attend upon any other/additional psychologist or counsellor without the consent of the other first obtained save for the Anchor program.
10.
The father shall forthwith, arrange for the return of X to the mothers care and shall advise the mother of the flight upon which the child is traveling from Brisbane to Sydney so that she might meet the child at the airport.
11.
The matter is adjourned for further mention and directions to 7 September 2016 at 2:30pm.
12.
Grant liberty to the Applicant to restore the proceedings to the list on 24 hours’ notice, in the event that the child is not returned to her care by 6 April 2016.
13.
Pursuant to S.65DA(2) and S.62B, 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 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.
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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