Mental health incapacity allegations – Vaughan & Vaughan [2015] FCCA 3268 (11 December 2015)

Mental health incapacity allegations – Vaughan & Vaughan [2015] FCCA 3268 (11 December 2015)

Last Updated: 23 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

Legislation: Evidence Act 1995 (Cth), ss.140, 140(2)  Family Law Act 1975  (Cth), ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA Mental Health Act 2014 (Vic), s.10

REPRESENTATION

FULL CASE

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2015/3268.html?stem=0&synonyms=0&query=family%20law%20act

ORDERS

(1) All previous parenting orders be discharged.
(2) The parties have equal shared parental responsibility for
X born (omitted) 2006 (‘X’), Y born (omitted) 2010 (‘Y’) and Z born (omitted) 2012 (‘Z’).
(3) X, Y and Z live with the Mother, commencing at 5:00pm on 11 December 2015.
(4) X, Y and Z spend time and communicate with the Father as follows:

<li “=””>(a) Commencing the first weekend of Term 1 2016, each alternate weekend from after school Friday to 5:00pm Sunday and if Monday is a non-school day to 5.00pm Monday;<li “=””>(b) Upon Z turning five, each alternate weekend from after school Friday to before school Monday and if Monday is a non-school day, to before school Tuesday;<li “=””>(c) Upon Z turning six, each alternate weekend from after school Thursday to before school Monday and if Monday is a non-school day, to before school Tuesday;<li “=””>(d) From after school Thursday (or 3:30pm if a non-school day) to 7:00pm in the alternate week;<li “=””>(e) For two periods of four consecutive nights in the 2016 school term holidays by agreement and failing agreement from after school on the last day of term to 12.00 noon Tuesday in week one and from 12.00 noon Monday to 12.00 noon Friday in week two;<li “=””>(f) For half of the school term holidays from 2017 by agreement and failing agreement for the first half in odd numbered years and the second half in even years;<li “=””>(g) In the long summer holidays in 2015/2016 for six periods of two consecutive nights by agreement and failing agreement from 12.00 noon 19 December 2015 to 12.00 noon 21 December 2015, 12.00 noon 27 December 2015 to 12.00 noon 29 December 2015, 12.00 noon 3 January 2016 to 12.00 noon 5 January 2016, 12.00 noon 10 January 2016 to 12.00 noon 12 January 2016, 12.00 noon 17 January 2016 to 12.00 noon 19 January 2016 and 12.00 noon 24 January 2016 to 12.00 noon 26 January 2016;<li “=””>(h) Commencing in 2016/2017 for one half of the long summer holidays as agreed between the parties and failing agreement on a week about basis commencing 5.30pm Friday on the last week of school 2016/17 and each alternate year thereafter and commencing 5.30pm Friday in the second week in 2017/18 and each alternate year thereafter.<li “=””>(i) On each of X, Y and Z’s birthdays and the Father’s birthday for three hours if a school day by agreement (and in default of agreement from 3.30pm to 6.30pm) and for five hours if a non-school day by agreement (and in default of agreement from 10.00am to 3.00pm) if the time does not ordinarily fall on the Father’s time;<li “=””>(j) From 3.00pm Christmas Day to 3.00pm Boxing Day 2015 and each alternate year thereafter;<li “=””>(k) From 3.00pm Christmas Eve to 3.00pm Christmas Day 2016 and each alternate year thereafter;<li “=””>(l) From 5.00pm the day prior to Father’s Day to before school Monday (or 9.00am if a non-school day) if such time does not ordinarily fall on the Father’s weekend;<li “=””>(m) By telephone each Monday, Wednesday and on the Sunday X, Y and Z are not with the Father with the Father to call the mobile number provided by the Mother and otherwise the Mother shall facilitate X, Y and Z telephoning the Father upon their reasonable request to do so; and<li “=””>(n) As otherwise agreed between the parties.

(5) The Father’s time shall be suspended as follows:

<li “=””>(a) Time pursuant to Orders 4(a), 4(b), 4(c) and 4(d) herein shall be suspended during all school holidays and time pursuant to

Orders 4(a), 4(b) and 4(c) shall resume the first Friday of the new term in odd numbered years and on the second Friday of the new term in even numbered years and time pursuant to Order 4(d) shall resume on the first Thursday of term in even numbered years and in the second Thursday of term in odd numbered years;<li “=””>(b) From 3.00pm Christmas Eve to 3.00pm Christmas Day 2015 and each alternate year thereafter;<li “=””>(c) From 3.00pm Christmas Day to 3.00pm Boxing Day 2016 and each alternate year thereafter;<li “=””>(d) From 5.00pm on the day prior to Mother’s Day to 6.00pm Mother’s Day if the time does not ordinarily fall on the Mother’s weekend; and<li “=””>(e) On each of X, Y and Z’s birthdays and the Mother’s birthday for three hours if a school day by agreement (and in default of agreement from 3.30pm to 6.30pm) and for five hours if a non-school day by agreement (and in default of agreement from 10.00am to 3.00pm) if the time does not ordinarily fall on the Mother’s time.

(6) The Mother shall be at liberty to telephone X, Y and Z each Tuesday and Friday during any periods of time that they are with the Father for a consecutive seven day period and otherwise the Father shall facilitate X, Y and Z telephoning the Mother upon their reasonable request to do so.
(7) Where practicable changeover shall occur at X, Y and Z’s schools/kindergarten, or otherwise at the rear of the (omitted) Club or as otherwise agreed between the parties in writing.
(8) X shall continue to attend on Ms J or such other counsellor as recommended by Ms J for counselling and the parties shall follow her reasonable recommendations with respect to ongoing counselling.
(9) The parties forthwith do all acts and sign all documents to enable X to be assessed by a suitably qualified educational therapist as to his intellectual functioning at their joint expense.
(10) Each party shall forthwith advise the other in the event of any serious medical illness or injury to X, Y or Z and authorise the other party to make enquiries of the treating medical practitioner.
(11) Each party shall keep the other informed of any medication/s X, Y or Z are taking and provide the medication at changeover with instructions as to its application/use.
(12) Each party shall be at liberty to obtain (at their own expense) information from X, Y and Z’s school/s, day care, kindergarten including but not limited to newsletters, photograph order forms and school reports.
(13) Each party shall be at liberty to attend school, day care and kindergarten events and extra-curricular activities that parents are usually invited to attend including but not limited to sports days, concerts, speech nights, parent-teacher interviews, matches and training.
(14) The parties and their servants/agents be and are hereby restrained by injunction from:

<li “=””>(a) Denigrating the other to or in front of X, Y and/or Z or allowing anyone else to do so;<li “=””>(b) Discussing the family law proceedings with or in front of X, Y and/or Z or allowing anyone else to do so; and<li “=””>(c) Exposing X, Y and/or Z to parental conflict.

(15) The Order of the Federal Circuit Court of Australia restraining the removal of X born (omitted) 2006 (‘X’), Y born (omitted) 2010 (‘Y’) and Z born (omitted) 2012 (‘Z’) from the Commonwealth of Australia dated 4 June 2014 be discharged.
(16) The Australian Federal Police remove the names of X, Y and Z from the Airport Watch List at all points of international arrivals and departures in Australia.
(17) In the event that either party wishes to travel overseas with X, Y and/or Z the travelling party shall:

<li “=””>(a) provide the other parent written notice of the proposed dates of travel no less than 45 days prior to the proposed travel; and<li “=””>(b) provide the other parent with a full itinerary including details of where X, Y and/or Z will be residing for the duration of the overseas travel and a contact number on which they can be contacted no less than 28 days prior to the proposed travel; and<li “=””>(c) provide the other parent with proof of the purchase of return tickets no less than 28 days prior to the proposed travel.

(18) X, Y and Z’s passports shall be held by the Mother’s solicitors and shall be released to the travelling party within 7 days of the travelling party providing the Wife’s solicitor with proof of their compliance with Orders 17(a), (b) and (c) herein and the travelling party shall return X, Y and Z’s passports to the Mother’s solicitor within seven days of the travelling party returning to Australia.
(19) The Mother shall continue to attend upon her treating psychiatrist
Dr K or such other psychiatrist as recommended by Dr K and follow all lawful directions given by Dr K or such other treating psychiatrist in relation to her ongoing attendance and treatment.
(20) The Mother shall authorise Dr K or such other treating psychiatrist attended by the Mother to notify the Father in the event the Mother fails to follow all lawful directions given by Dr K or such other treating psychiatrist as to attendance and treatment or if Dr K or such other treating psychiatrist is of the view the Mother’s psychological health may significantly impact on the Mother’s capacity to care for X, Y and Z at any time.
(21) The Independent Children’s Lawyer is requested to provide a copy of these Orders to Dr K.
(22) The Mother forthwith enrol in the Child First Program (“the program”), (omitted) Region, telephone number (omitted), and follow all lawful directions given by the organisation conducting the program with respect to attendance.
(23) The parties forthwith enrol in and complete the Parenting Orders Program at their joint expense offered by the Family Relationships Centre (“the FRC”) (omitted), telephone number (omitted), and follow all lawful directions given by the FRC in relation to ongoing attendance.
(24) It is declared that this is an order to which Section 68P of the  Family Law Act 1975  (Cth) applies and to the extent that it is inconsistent with, it over rides any Family Violence Intervention Order made in the Magistrates Court of Victoria.(25) Any application by either party seeking to vary or suspend these orders, should be, if possible referred to the Chambers of Judge Bender to be listed as directed by Judge Bender.