FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
York & York [2023] FedCFamC2F 971
File number(s): CAC 1139 of 2021 Judgment of: JUDGE MANSFIELD Date of judgment: 7 August 2023 Catchwords:
FAMILY LAW – PARENTING – Final orders – Two children aged 9 and 6 years old – Where father convicted of use of a carriage service to cause Child Exploitation Material (CEM) to be sent to himself – Where mother and ICL seek supervised time only – Where father seeks only a limited period of supervision and then overnight time – Conflicting expert evidence as to level of risk posed by the father – Determination that the risk posed by the father is classified as a possibility but is not an unacceptable risk.
Legislation: Australian Passports Act 2005 s 11(1)(b)(i)
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 60CG, 61DA, 65D, 65DAC, 65Y(2)(b), 102NA
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Isles & Nelissen [2022] FedCFamC1A 97
Makita (Australia) Pty v Sprowles (2001) 52 NSW LR 705
R & C [1993] FamCA 62
Division: Division 2 Family Law Number of paragraphs: 109 Date of last submission/s: 16 May 2023 Date of hearing: 3 to 5 April 2023 Place: Canberra Solicitor for the Applicant: Self-Represented Solicitor for the Respondent: Self-Represented Counsel for the Independent Children’s Lawyer: Dr Leslie Solicitor for the Independent Children’s Lawyer: Legal Aid ACT ORDERS
CAC 1139 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR YORK
Applicant
AND: MS YORK
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
7 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous parenting orders for the children X born in 2013 and Y born in 2017 (‘the children’) be discharged.
Parental Responsibility and Lives With
2.The mother have sole parental responsibility for the children.
3.In exercising her sole parental responsibility, the mother shall do the following:
(a)Notify the father via email of any long-term parenting issue which requires a decision with the email to set out her initial view as to the decision that should be made (for example, what school the children should attend);
(b)Within 14 days of that initial communication, the father shall respond by return email setting out his view about the course of action proposed and any alternative suggestions he has;
(c)The mother will consider the father’s view for a period no longer than 14 days and, if necessary, re-contact the father for further information or discussion;
(d)That upon the expiration of 14 days from the date of receipt of any alternative view set out in Order 3(b) above, and if no agreement can be reached after a genuine attempt to reach agreement, the mother shall make the decision and notify the father forthwith by email of the decision made.
4.The mother:
(a)Be permitted to commence or proceed with an application for a passport…
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CaseChat Overview and Summary
The court had to decide whether the father's past conduct warranted more stringent conditions for contact with the children. Ms York and the Independent Children's Lawyer advocated for supervised visitation only, while Mr York sought a transition to unsupervised visits after a limited period of supervision. The court evaluated the conflicting expert evidence presented, ultimately concluding that while there was a possibility of risk, it did not reach the level of an unacceptable risk. This determination allowed the court to set parenting orders that balanced the safety of the children with the father's right to maintain a relationship with them.
In its reasoning, the court emphasised the importance of the children's safety and well-being while also recognising the father's rights. The final orders discharged previous parenting arrangements, granted sole parental responsibility to the mother, and established specific guidelines for communication, visitation, and health-related information sharing. The court also imposed restrictions on alcohol consumption during visitation and prohibited the parents from exposing the children to derogatory comments or family violence. The orders reflect a balanced approach aimed at protecting the children while allowing the father to engage in their lives under controlled conditions.
Orders
Orders of the court
CAC 1139 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR YORK
Applicant
AND:
MS YORK
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
7 AUGUST 2023
THE COURT ORDERS THAT:
1. All previous parenting orders for the children X born in 2013 and Y born in 2017 (‘the children’) be discharged.
Parental Responsibility and Lives With
2. The mother have sole parental responsibility for the children.
3. In exercising her sole parental responsibility, the mother shall do the following:
(a) Notify the father via email of any long-term parenting issue which requires a decision with the email to set out her initial view as to the decision that should be made (for example, what school the children should attend);
(b) Within 14 days of that initial communication, the father shall respond by return email setting out his view about the course of action proposed and any alternative suggestions he has;
(c) The mother will consider the father’s view for a period no longer than 14 days and, if necessary, re-contact the father for further information or discussion;
(d) That upon the expiration of 14 days from the date of receipt of any alternative view set out in Order 3(b) above, and if no agreement can be reached after a genuine attempt to reach agreement, the mother shall make the decision and notify the father forthwith by email of the decision made.
4. The mother:
(a) Be permitted to commence or proceed with an application for a passport for the children from the Department of Foreign Affairs and Trade of the Commonwealth of Australia pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005, without the consent of the father; and
(b) Has leave pursuant to section 65Y of the Family Law Act 1975 to take the children outside of the Commonwealth of Australia for the purposes of overseas travel.
5. The children live with the mother.
Spends Time With
6. The children are to spend time with their father as agreed between the parents and failing agreement:
(a) Every Wednesday from the conclusion of school or 4:00pm until 7:00pm, with the father to collect the children from their school or the mother, and the father to deliver the children to the mother at the end of the time; and
(b) Alternate Sundays from 9:00am to 5:00pm, with the father to collect the children from the mother at the start of time, and the mother to collect the children from the father at the end of the time.
7. Upon compliance with Orders 18 and 19, but no sooner than six (6) months from the date of these orders, the children are to spend time with their father as agreed between the parents and failing agreement:
(a) Every Wednesday from the conclusion of school or 4:00pm until 7:00pm, with the father to collect the children from their school or the mother, and the father to deliver the children to the mother at the end of the time; and
(b) Alternate Saturdays and Sundays (on the same weekend) from 9:00am to 5:00pm each day, with the father to collect the children from the mother at the start of time, and the mother to collect the children from the father at the end of the time.
Communication between the children and the Father
8. The children be permitted to contact the father each Tuesday and Thursday between 6:30pm and 7:30pm as follows:
(a) With the father to initiate the call to the mother; and
(b) With the mother to ensure that the device receiving the call is available and ready to receive the call.
9. In addition to the time set out in Order 8 above, should either of the children or both children express a wish to speak to the father at any other reasonable time, the mother shall facilitate that occurring.
Communication between the Mother and Father
10. For the purposes of communicating information about the children and/or compliance with any Orders made, the mother and father shall use the Talking Parents App unless the issue is urgent when communication shall occur via telephone call or text message to their personal phone numbers.
11. Both parents keep each other informed at all times of their contact details including mobile telephone numbers and email addresses and advise the other parent of any change to such details forthwith but no later than twenty-four (24) hours after the change has occurred.
12. The mother keep the father informed at all times as to the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other health professionals attended upon by the children.
13. Both parents inform the other parent of any serious medical condition, significant health issue or illness suffered by the children in their care as soon as reasonably practicable but within twenty-four (24) hours of such serious medical condition, significant health issue or illness arising and in the event the children attend hospital for any illness or injury the other parent be notified within two (2) hours.
Authority relating to School/s/Treatment Providers
14. This Order acts as authority for any school attended by the children to release to the father information about the children’s educational progress and other school-related activities and supply him with copies of school reports, photographs, certificates obtained by the children and any newsletters, notices or other correspondence or information about the children that would normally be provided to a parent.
15. These Orders be sufficient authority for the children’s treating practitioners and specialist practitioners or other health practitioners to provide any and all information relating to the children to the father, however shall not be taken to discharge the parent’s obligations pursuant to these Orders to keep each other informed of such information.
Counselling and Programs
16. The mother forthwith do all acts and things necessary to:
(a) Obtain a Mental Health Care Plan for each of the children;
(b) Obtain a referral to a clinical psychologist with experience in protective behaviours for children;
(c) Engage the children with that clinical psychologist for the following purposes:
(i) General emotional and psychological support for the children;
(ii) Assistance with informing the children of the father’s offending in a child- focussed and supportive manner; and
(iii) Work with the children on protective behaviours with a particular focus on boundaries and the risks of grooming by a trusted person given the father’s offending.
17. For the purposes of Order 16 above, the mother has liberty to provide a copy of these Orders, the Family Report of Dr B dated 7 February 2022, the report of Dr C dated 27 August 2022 and the reasons for judgment to the children’s treating practitioners.
18. The father continue to attend upon Ms D (Forensic Psychologist), or such other person as may be recommended by Ms D in the event she cannot continue her therapeutic engagement with the father, for a period as deemed necessary by Ms D (or such other person as may be recommended by Ms D) but for not less than 6 months if treatment is weekly or for not less than 12 months if treatment is less frequent than weekly, and with the father to follow all of her reasonable directions and recommendations in relation to treatment.
19. The father forthwith do all acts and things necessary to engage in regular targeted drug and alcohol counselling with a service such as E Service or, should the father prefer, with a private practitioner and the father shall do the following:
(a) Provide the mother with proof of engagement in regular targeted drug and alcohol counselling; and f
(b) Follow all reasonable directions and recommendations in relation to targeted drug and alcohol treatment.
20. In relation to Order 19 above, the father has liberty to provide a copy of these Orders, the Family Report of Dr B dated 7 February 2022, the report of Dr C dated 27 August 2022 and the reasons for judgment to his treating practitioners.
21. Should the mother continue with or engage in therapeutic counselling, she has liberty to provide a copy of these Orders, the Family Report of Dr B dated 7 February 2022, the report of Dr E dated 27 August 2022 and the reasons for judgment to her treating practitioners.
Restraints
22. The father is restrained from consuming alcohol while spending time with the children or for the 12 hours preceding spending time with the children.
23. The parties are each restrained from:
(a) Making any derogatory comments in regard to the other parent, their partners or a member of that parent’s family, in the presence or hearing of the children, or allowing the children to remain in the presence or hearing of another person making such comments;
(b) Posting or publishing any material on social media in regard to the other parent;
(c) Using physical chastisement as a form of discipline of the children;
(d) Exposing the children to family violence while the children are in their care or they are spending time with the children.
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.
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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