FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEMPLE & DAUTRY (No.2) | [2014] FCCA 2847 |
| Catchwords: FAMILY LAW – Parenting issues involving persistent allegations by the Mother against the Father, none of which are substantiated – Mother’s false evidence given to Magistrates Court in relation to parenting proceedings and orders in this Court – change of residence of child in part because of Mother’s constant frustration and harassment of Father (and his partner) – likely detriment to Father’s relationship with child – use of evidence of proceedings in Magistrates Court – persistent allegations by Mother against Father (a serving AFP officer) including stalking the Mother and child, fabricating documents, and hacking the Mother’s emails, all allegations established to be false – the Mother instructed her then lawyers to claim in this Court that the transcript of her evidence in the Magistrates Court was incorrect, which claim was also established to be false. |
| Legislation: Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA, 69ZN, 69ZT(1)(c), 69ZX(3) Evidence Act 1995, s.91 |
| Adamson & Adamson [2014] FamCAFC 232 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Carlson & Fluvium [2012] FamCA 32 Collu & Rinaldo [2010] FamCAFC 53 Damiani & Damiani [2010] FamCA 217 Fox v Percy (2003) 214 CLR 118 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 McCall v Clark (2009) 41 Fam LR 483 McGregor v McGregor (2013) 47 Fam LR 498 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 Mulvany v Lane (2009) 41 Fam LR 418 RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Honourable Justice Forrest (2012) 247 CLR 304 Rice & Asplund (1979) FLC ¶90-725 SCVG & KLD (2014) FLC ¶93-582 Shaeffer v Jacobs (2011) FLC ¶93-468 Sigley v Evor (2011) 44 Fam LR 439 Smith v NSW Bar Association (1992) 176 CLR 256 Suell & Suell (Re-Opening) [2009] FamCA 55 Su v Chang (1999) 25 Fam LR 558 Wemple & Dautry [2013] FCCA 2376 Wemple & Dautry (Stay Application) [2014] FCCA 401 |
| Applicant: | MR WEMPLE |
| Respondent: | MS DAUTRY |
| File Number: | CAC 1472 of 2013 |
| Judgment of: | Judge Neville |
| Hearing dates: | 24 – 25 July & 10 September 2014 |
| Date of Last Submission: | 14 November 2014 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr N James |
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Counsel for the Respondent: | Mr T Hodgson |
| Solicitors for the Respondent: | N/A |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mrs G Yeend |
| Solicitors for the Independent Children's Lawyer: | Yeend & Associates |
ORDERS
The Father have sole parental responsibility for the child [X] (“the child”), born [omitted] 2008.
The child live with her Father.
To support the change in the living arrangements for the child:
(a)The Father will enrol the child in confidential counselling within seven (7) days and provide the Counsellor with a…
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- AGLC
- Wemple & Dautry (No.2) [2014] FCCA 2847
- Case
- [2014] FCCA 2847
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary caregiver for the child, the child's principal place of residence, and the specific arrangements for the child to spend time with each parent. Additionally, the court had to consider provisions for counselling, communication between parents, and restrictions on parental conduct and travel with the child.
Judge Neville ordered that the Father have sole parental responsibility for the child and that the child live with him. The orders detailed a structured schedule for the child's time with the Mother, including specific days and times, and outlined provisions for school holidays, birthdays, and Christmas. The court also mandated counselling for both parents and the child, imposed restrictions on discussing proceedings with the child, and set conditions for travel outside the local area and internationally. The Mother was also specifically restrained from taking the child to a particular medical centre without the Father's written consent. The parenting matter was finalised, with proceedings adjourned for directions regarding property matters. The Mother was put on notice that withholding the child from the Father's care could result in a Recovery Order.
Orders
Orders of the court
1.
The Father have sole parental responsibility for the child [X] (“the child”), born [omitted] 2008.
2.
The child live with her Father.
3.
To support the change in the living arrangements for the child:
(a) The Father will enrol the child in confidential counselling within seven (7) days and provide the Counsellor with a copy of these Orders and be solely responsible for all arrangements regarding this counselling;
(b) The Father will authorise the Counsellor pursuant to Order 3(a) to discuss with each parent and their respective Counsellors, the dates for counselling with the child and any other issues considered relevant by the Counsellor;
(c) Each parent will enrol in a course of counselling with a Counsellor and authorise the Counsellor to discuss with the Counsellor appointed pursuant to Order 3(a) any issues the Counsellor considers relevant;
(d) Each parent will enrol in a parenting after separation course within seven (7) days and provide the other parent with written evidence of completion.
4.
The child spend time with her Mother as follows:
(a) In Week 1: From after school on Friday (or 3.00pm if Friday is a non-school day) until 5:00pm on Sunday; and
(b) In Week 2: From after school on Thursday (or 3.00pm if Thursday is a non-school day) until 7:00pm on Thursday.
5.
Notwithstanding these orders, each of the parties take all reasonable steps to ensure that the child spends time with her parents as follows:
(a) With her Father for the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holidays periods commencing in years ending in an even number;
(b) With her Mother for the second half of all school holiday periods commencing in years ending in an odd number, and the first half of all school holidays periods commencing in years ending in an even number;
(c) With her Mother from 9:00am until 5:00pm each Mother’s Day and with her Father from 9:00am until 5:00pm each Father’s Day.
(d) If the Mother’s birthday or the Father’s birthday falls on a day when the child would otherwise be living with the other parent, the following Orders apply:
(i) That if the Mother’s or Father’s birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the child spends time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from after school or 3:30pm (if a non-school day); and
(ii) That if the Mother’s birthday or Father’s birthday falls on a weekend each of the parties take all reasonable steps to ensure that the child spends time with the parent having the birthday from 9:00am until 5:00pm on the birthday.
6.
On the child's birthday each year, the parent with whom the child is living make her available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5:00pm until 7:00pm;
(a) In even-numbered years, from 10:00am on Christmas Eve until 10:00am on Christmas Day with the mother and from 10:00am Christmas Day until 10:00am Boxing Day with the Father;
(b) In odd-numbered years, from 10:00am on Christmas Eve until 10:00am on Christmas Day with the father and from 10:00am Christmas Day until 10:00am Boxing Day with the Mother; and
(c) Such further or other times as the parties may agree.
7.
That for the purposes of Orders 4(a) and 4(b), in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a) The first half of school holidays is deemed to commence at the end of classes on the last day of school;
(b) The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year;
(c) The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or the middle Wednesday of the school holidays if the relevant holiday period has an odd number of weeks; and
(d) One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2. If the number of days are not even, the Father is to have the extra day in even years and the Mother is to have the extra day in odd years.
8.
For the purposes of Orders 2, 3, and 4 where handover does not occur at the child’s school, it occur at the [omitted] or at a location as agreed in writing by the parties.
9.
That during the time that the child lives with her Father, the Father facilitate the child making a telephone call to the Mother as follows:
(a) In Week 1: On Monday and Wednesday afternoons between 5:00pm and 6:00pm; and
(b) In Week 2: On Tuesday and Saturday afternoons between 5:00pm and 6:00pm; and
(c) Any other reasonable time that the child requests to speak to her Mother.
10.
Neither parent change the child’s place of residence from the Australian Capital Territory/Queanbeyan area without first obtaining the written consent of the other parent or an Order of the Family Court or Federal Circuit Court.
11.
In the event that either parent intends to change their place of residence within the Australian Capital Territory/Queanbeyan area or their contact telephone number, they provide the other parent with 14 days’ notice of the new address and/or telephone number.
12.
Each parent notify the other immediately of any serious illness or injury affecting the child, and immediately provide the necessary authorities to entitle the other parent to obtain information from any doctor or hospital treating the child.
13.
Each parent notify the other of the name of any general practitioner or paediatrician or other specialist who treats the child whilst the child is in that parent’s care.
14.
Neither parent say unkind or uncomplimentary things about the other (or the other’s partner) to or in the presence of the child, nor cause or allow anybody else to do so.
15.
Both parents be restrained from:
(a) Discussing these proceedings with or in the presence of the child;
(b) Enrolling the child in any extra-curricular activities which fall during the period that the child lives with the other parent without the prior written consent of the other parent;
(c) Contacting the child by telephone other than the times set out in Order 9 unless in the event of an emergency.
16.
During all times that the child lives with her Mother, the Mother ensure that the child is able to sleep in her own bedroom, and the Mother do all things necessary to ensure that the child sleeps in her own bedroom during any time she spends while in the home of her maternal grandmother, Ms D.
17.
The Mother ensure that she is present during any time that the child is in the presence of any member of the [G] family (including Mr G) during any time the child lives with her.
18.
In the event that either parent wishes to travel out of the Canberra/Queanbeyan region with the child during their time with the child, they must provide the other parent with:
(a) Written notice of the travel before the travel occurs; and
(b) A contact telephone number.
19.
Pursuant to Section11(1) of the Passports Act 2005, the Court permit the child to travel internationally.
20.
In the event that either parent wishes to travel overseas with the child, they must provide the other parent with at least two months’ notice of their intention to travel, along with copies of return tickets for the child at least 14 days prior to the departure, a detailed itinerary providing addresses and phone numbers for the accommodation in which the child will be staying at least 14 days prior to departure and the other parent will not unreasonably withhold his/her consent (which must be in writing) to the proposed travel.
21.
The Mother be restrained from taking the child to the [omitted] Medical Centre at any time for any reason without the prior written consent of the Father.
22.
Notwithstanding anything in these Orders, for the purposes of the 2014 Christmas and school holidays only the child shall spend time with her parents as follows:
(a) With the Father from 18 December 2014 to 15 January 2015;
(b) With her Mother from 15 January 2015 to 30 January 2015; and
(c) For a period of 4 hours on Christmas Day from 12pm until 4pm with the Mother.
23.
For the purposes of Order 22 (a) above the Mother is deliver the child to the Father no later than 6pm this evening, 18 December 2014.
24.
Changeover shall take place at the [location omitted] at 4:00pm on the relevant day.
25.
The parenting matter is now finalised and the proceedings be adjourned for directions in relation to the property matters to 6 February 2015 at 9:15am.
AND IT IS NOTED THAT:
A. In the light of the concerns expressed in the reasons for judgment delivered today, the Mother is on notice that if anytime she withholds the child from returning to the Father’s care in accordance with these orders that upon notification of same to the Court there is a risk that a Recovery Order will issue in Chambers without further notice.
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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