There is a parenting Application in a Proceeding before the Federal Circuit and Family Court of Australia
Question:
There is a parenting Application in a Proceeding before the Federal Circuit and Family Court of Australia at Sydney in Division 2 (the former Federal Circuit Court of Australia).
You act for the Applicant Father.
You are to prepare a Case Outline Document for your client's case which is to be filed with the Court prior to the hearing. In your Case Outline Document, you should:
- Identify the issues in dispute.
- Identify and apply the following in your Outline of Contentions, where appropriate:
- Relevant and current provisions in the Family Law Act (Cth) and the Family Law Rules that apply;
- Relevant and recent cases concerning children, particularly where family violence is a factor (so you will need to research: see below);
- Relevant social science literature, reports or guidelines about parenting, family violence and attachment theory, that reinforce the submissions for your clients' application (so you will need to research: see below).
- Formulate the Minute of Orders sought you are seeking, consistent with your submissions;
- Footnote all sources you use in preparing your Case Outline Document;
- Use headings to structure your Case Outline Document and number your paragraphs (headings are not counted in the word count)
you do not have to review the facts or set out the legislative provisions, although you do have to footnote these).
Any headings or footnotes are not counted in the word count. However, footnotes that are in excess of four (4) lines will be counted in the word count.
Part B
Reflect on the challenges of this assessment task and how it contributed to the development of your competence as a family law professional
For this assessment, students will be required to show that they understand:
- the significance of family and domestic violence (FDV) and other risk factors in the family law system;
- the relevant legislation and cases;
- the social science literature, reports and guidelines that might inform the outcome of children's matters/parenting arrangements concerning family violence.
Facts in the problem
Karen Baker and Bruce Turner met in 2011 on a night out with friends. Karen was studying to become a primary school teacher at the University of Sydney, and Bruce had just accepted his commission in the Royal Australian Air Force as a trainee fighter pilot, based initially in Sale in Victoria.
Karen and Bruce's relationship moved quickly, and they began a long-distance relationship between Sydney and Sale. Bruce proposed to Karen in early 2012, and they were married in a full military service on 21 April 2013.
Karen finished her teaching degree at the end of 2012, and moved with Bruce to RAAF Base Richmond, on the outskirts of Sydney in the Hawkesbury region, where he was stationed at the time. Karen began working at a local primary school in what was known as a fairly dangerous neighbourhood.
The move to Sydney was important to Karen as her family were deeply religious in the Pentecostal faith of Christianity, at a church called the 'Church of God's Eternal Light' which had been reported in some news outlets to be a fundamentalist church that required prayer 4times per day, and 30% of adherents income to be given to their church leader in the United States of America. Her uncle was the pastor at the local Church where they worshipped in Windsor. Bruce was agnostic when it came to religion, however he soon became deeply adherent to the God' Eternal Light faith and agreed wholeheartedly that any children they had children would be raised in the faith.
There are two (2) children of the marriage: Luke born on 10 September 2014, and; Georgia born on 14 February 2018. Karen and Bruce separated on 29 October of 2022.
Karen stopped working for the NSW Department of Education the primary school in late 2016 after being diagnosed as suffering Post-Traumatic Stress Disorder (PTSD) from being held at gun-point by a student in 2016. In July 2019 she was admitted to South Pacific Private Hospital, a private mental health hospital, for treatment of her PTSD. She says that she was discharged a month later and placed on a treatment program, which she has continued to follow and regularly sees a clinical psychologist to this day.
She also found strength from speaking with her uncle, the pastor, and she began to explore the more fundamentalist and conservative practices of the Church of God's Eternal Light. Some of these practices required adherents to remove themselves from socialising with non-adherents, and she began to cut-off family and friends who were not involved with the church.
Bruce claims that Karen doesn't follow her mental health treatment plans and threatened self-harm back in September 2020. In December 2020, she commenced working part-time for Warringah Council as a Ranger, whilst also receiving workers compensation after her medical discharge from the NSW Department of Education.
Karen alleges that Bruce has a history of poor impulse control, and Karen alleges he was violent towards her during the course of their marriage. She says he was verbally violent to her, calling her names, beginning after they first started living together. There were frequent angry outbursts from him. She also alleges that on two (2) occasions he was physically violent:
- In November 2014, shortly after Luke was born. She says he lost his temper and hit the kitchen bench with a broom, causing it to break and splinter, with a piece of the broken broom flying into her eye, causing her to have to go to hospital to have a check-up, with no major lasting injury. Bruce acknowledges this occurred and that he was deeply remorseful.
- In December 2020, he threw a microwave oven at her, and injured her leg. Bruce maintains that he only meant to throw the microwave in her direction, and that he didn't mean to injure her.
At separation, Bruce and Karen got into an argument about who would have to move out of the matrimonial home. When Karen refused to leave the matrimonial home and asked Bruce to move out instead, the argument broke out. Bruce grabbed Karen by her hair and proceeded to push her out the front door, then locking it behind her. The children were inside the house at the time and witnessed their mother being dragged outside. As he pushed her out of the front door, Karen struck her head against the door frame, leaving her with bruising and a cut on her lip.
Karen went to a neighbour's house and the Police were called to this incident and a Provisional Apprehended Domestic Violence Order was made restraining Bruce from verbally or physically assaulting her, as well as being able to contact her, except through legal representatives. Bruce has been charged with aggravated assault and has now been suspended from his role in the RAAF, pending the outcome of the charges, on full pay.
Since separation, the children have been living with each parent on an equal time basis by agreement between them both, spending 7 nights out of each fortnight with each parent, from Monday to Monday. For the week that the children live with Bruce, they remain in the former matrimonial home on RAAF Base Richmond, while Karen has been renting a granny flat from fellow worshippers from the Church of God's Eternal Light in nearby Windsor, close to where Luke is enrolled in year 3 at Richmond Public School and where Georgia is attending a day care nearby for 3 days per week.
Karen was always uncomfortable with the idea of the children living in an equal time arrangement, however she did not want the children to not-see their father, and Bruce demanded the equal time be the arrangement after he read on the 'Fathers United' Facebook Group page he joined, that the law requires that parents now had to have the children live in equal time arrangements after separation.
Karen wishes to permanently relocate her residence and the place of residence of the children from Hornsby to Kempsey, on the NSW North Coast, about 4 hours and 40 minutes' drive. She has recently been offered a senior position as a Local Council Ranger with Kempsey Council.
Karen claims she would suffer serious financial and psychological detriment if she were required to remain in Windsor, where property prices remain high and rental accommodation virtually non-existent. She says that she has not worked full-time since Georgia was born, and feels that this has resulted in her recent bout of depression, and a sense of isolation and of 'losing herself'. Karen grew up in Kempsey, where her parents both still live. Her father was recently elevated to Grand Pastor of the Church of God's Eternal Light in Australia, and has decreed that the biblical apocalypse is nigh, and that all adherents must begin preparations for the end of days at this rural Kempsey property.
In the four (4) months since the equal time arrangement had been in place, the children have become increasingly distressed and anxious, with Luke starting to act-out at school and Georgia being constantly unsettled.
Luke's teacher emailed both Bruce and Karen with concerns that on the weeks he comes to school when the children are living with Karen, Luke arrives late or misses days entirely with unexplained absences, and has been to school twice and disclosed to his teacher and the school counsellor that he has had to make dinner for himself and his little sister, because 'mum falls asleep on the lounge after her prayer service and we can't wake her up'.
Meanwhile, Georgia is anxious and cries at changeover, which is conducted by Karen and the paternal grandmother at a caf adjacent to the air force base. Bruce alleges that Karen has begun experimenting with psychedelics, such as LSD, so that she can enhance her immersion with the Holy Spirit during her prayer group meetings each week. Karen denies that she is using LSD, however does admit that the Church does use 'facilitator herbal remedies' to open her mind and heart to the Lord.
Karen wishes for the children to relocate with her to Kempsey. She also asked Bruce to allow Luke to change his school enrolment to attend the College of the Burning Bush, which adheres to the teachings of the Church of God's Eternal Light. Bruce has always worried about Karen's family's religious views, characterising them as 'radical' and has researched the College, which does not allow the children to have engagement with the broader community and makes them attend religious education each Saturday for 10 hours. Bruce does not want Luke to be enrolled at the College, and instead that he remain attending his same school. Bruce does not consent to Karen relocating with the children to Kempsey, and is increasingly concerned about the children's being adherents of that faith.
Bruce filed an Initiating Application seeking interim and final property and parenting orders from the Federal Circuit and Family Court of Australia, and Karen filed her response to both applications. The matter was listed before Judicial Registrar Buttriss on 20 February 2023 and a direction was made for the appointment of an Independent Children's Lawyer (ICL) appointed to independently represent the child's interests in the proceedings.
A further direction was made by Judicial Registrar Buttriss on the first return date of the matter before the Court for the parties and the children to attend a Child Impact Report (CIR) to be interviewed by a Court Child Expert of the Court on 20 March 2023.
Applications before the Court
Bruce seeks interim orders for the children to primarily live with him, contending that Karen has proven she is unstable, abusing substances, and cannot provide a proper roof over the children's heads. As he is now suspended from the military, he states he can take full time care of the children. He asks your advice on what you think would be appropriate time the children spend with Karen, as he genuinely is not sure about what she can handle, and if it ought to be supervised. He also wants a restraint on the children moving out of the Hawkesbury region, and does not consent to the children being involved in the Church of God's Eternal Light. He thinks that they can make decisions about medical care and other matters, but believes Karen is blindly following a dangerous religion.
Karen is seeking that the Court order for the children to live primarily with her and relocate to Kempsey, where she is able to live with the maternal grandparents on their ranch. She seeks that the children spend supervised time only with Bruce for 2 hours twice a week, with no overnight time because she is worried about his anger management. She also seek that Luke commence school at the College of the Burning Bush at the beginning of Term 3, 2023. Karen is also seeking an order for sole parental responsibility on an interim basis, asserting that the presumption is rebutted because of the family violence that she alleges has occurred.
At the CIC, the children told the Court Child Expert that they like spending time with both their mum and dad, but that dad gets angry at them and yells at them if they ask him things while he watches his favourite television shows on Netflix and sends them to their rooms straight after dinner. They also said that they really like spending time with their paternal grandmother and their father has told them that they would rarely see him if "their mother stole them away from their real family". The children also said they were excited about seeing their maternal grandparents, because they might be able to make meals for them while their mum speaks to the Holy Spirit. They are slightly anxious about moving to Kempsey, though, as mum said "we will be with all of the true children of the Lord, and will watch Him smite the great unwashed who have dared to stray from the path of righteousness." The Court Child Expert identified risks in both parents households, however said that it was a matter for the Court to determine the care arrangements.
The matter is listed for a two (2) hour Interim Hearing before Senior Judicial Registrar McGrath at the Court in Sydney on 4 May 2022, with an Order that the parties file and serve their Case Outline Documents by 11:59pm on Sunday, 1 May 2022. The ICL has not yet given a view to the Court, and will await the submissions of the parties at the hearing.
Task
You act for the Father.
The Court has asked that you also provide a Case Outline Document to the Court, along with a Minute of Order of the Orders you propose would be in the children's best interests.
The Court is keen to read your submissions in accordance with the legislative pathway, and your assessment of any risk of harm and family violence for the Court to consider when making its interim determination, and is also interested in any social science theory, and case law relating to the issues in dispute.
Income Tax Fundamentals 2013
ISBN: 9781285586618
31st Edition
Authors: Gerald E. Whittenburg, Martha Altus Buller, Steven L Gill