Father wins custody in parent alienation case.



CASE  : Rayner & Carlton [2016] FCCA 2212 (26 August 2016)

FAMILY LAW – Children – history of mother not supporting child’s relationship with father – parental capacity – child only able to benefit from relationship with both parents if living with father.

parent_alienation

ORDERS

(1) The father shall have sole parental responsibility for the child X born (omitted) 2006 (“the child”) in relation to all major long term issues including education and health; on conditions that:

Education

(a) The father will contact the mother in writing and provide his views on any such issue relating to proposed change of school in advance of applying for new enrolment.
(b) The mother will consult with the father in writing with regard to any such issue.
(c) The father and mother will make a genuine effort to come to a joint decision about any such issue; and
(d) If no agreement is reached between the parties, within 14 days the father shall make the final decision and advise the mother in writing of the decision about any such issue.

Health

(e) That prior to any planned non-emergency surgery the father will provide the mother 28 days written notice of the proposed treatment and contact details for the treating doctor.
(f) In the event that the child requires urgent medical treatment whilst in the care of one parent (other than visits to general practitioner) that parent shall notify the other parent by email or SMS as soon practicable.
(2) That each parent provide a mobile number and email address for the purpose of communicating about X and provide up to date contact details within 48 hours of any change.
(3) The father shall request that the school provide a copy of X’s school report and that the mother be entitled to attend any parent teacher interviews. In the event that school is unable to provide a duplicate report then the father shall post a copy to the mother.
(4) The child shall live with the father.
(5) The child shall spend time with the mother as agreed between the parties and failing agreement:

    <li “=””>(a) During school term from the conclusion of school Friday on the first weekend of term until 6:30pm Sunday and each alternate week thereafter.<li “=””>(b) During school holidays in even numbered years for the first half for term 1, 2 and 3 school holiday periods commencing 6:30pm on the last day of school term until 6:30pm seven days thereafter.<li “=””>(c) During school holidays in odd numbered years for the second half for term 1, 2 and 3 school holiday periods commencing 6:30pm on the seventh day and concluding at 6:30pm on the day before school resumes.<li “=””>(d) From 6:30pm 23 December 2016 to 10am Christmas Day in 2016 and each alternate year thereafter and from 10am Christmas Day to 6.30pm on Boxing Day in 2017 and each alternate year thereafter.<li “=””>(e) From 6:30pm 27 December to 6:30pm 13 January in odd numbered years and from 6:30pm 13 January to 6:30pm, the day before school resumes in even numbered years.

(6) That in the event that changeover does not take place at school, then it shall take place at McDonalds, (omitted).
(7) The father shall ensure that his partner, Ms M, does not attend changeover.
(8) The parties shall have and facilitate reasonable telephone communication with the child when she is not in their care as agreed, or failing agreement the child communicate with a non-carer parent each Thursday, Saturday and Tuesday no earlier that 6pm and no later than 8pm.
(9) The Father and Ms M shall attend a parenting course or family therapist as recommended by Dr J and notified by the Independent Children’s Lawyer.

REASONS FOR JUDGMENT

  1. These are parenting proceedings with respect to the parties’ daughter X, born (omitted) 2006, who is now aged 10 years. The parties separated in 2008 when X was 2 years old. She lived with her mother until interim orders were made on 2 February 2016, when she commenced living with her father.

Applications

  1. The father represented himself throughout these proceedings. He filed an initiating application on 18 September 2015. He provided a document by way of an outline, seeking that the interim orders continue. He had sought that the mother’s time be supervised. In cross-examination it was clear that he did that as he was afraid the mother may take X away again. He no longer seeks that order. The father relies on all affidavits filed since September 2015. Those affidavits are dated 18 September 2015, 30 December 2015, 27 January 2016 and 6 June 2016. He also relies on an affidavit of his partner, Ms M, filed 6 June 2016.
  2. The mother provided a case outline document, in which she relied on a response filed 30 November 2015, and affidavit filed 20 July 2016. The outline set out the orders sought, in essence: that X live with her; she have sole parental responsibility; time with the father Friday to Sunday each alternate weekend; half school holidays; telephone communication; that X attend (omitted) Public school; and a restraint on either parent relocating X’s residence from the Sydney metropolitan area.
  3. The Independent Children’s Lawyer (“ICL”) provided a case outline, and relies on Family Reports of Dr J dated 29 May 2013 and 14 January 2016. At the conclusion of the hearing the ICL provided a minute of orders, seeking that X live with the father and spend time with the mother on alternate weekends from Friday to Sunday and half holidays. These orders are broadly in line with the current interim orders, except sole parental responsibility is sought for the father.
  4. All witnesses were cross-examined during the course of the proceedings.

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