Acton and Hammer

Case [2013] FCCA 1174


FEDERAL CIRCUIT COURT OF AUSTRALIA

ACTON & HAMMER [2013] FCCA 1174
Catchwords:
FAMILY LAW – Adjournment of final hearing sought on first day of hearing by self-represented litigant – adjournment application opposed by applicant and Independent Children’s Lawyer and ultimately refused by Court – due process – effective use of the Court’s time and resources – costs application.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZX, 117(4)

Federal Circuit Court Act 1999, ss.42, 17A
Federal Circuit Court Rules 2005, Schedule 1
International Convention on the Rights of the Child, Article 12

Aon Risk Services Australia v Australian National University [2009] HCA 27
Sali v SPC Ltd (1993) 67 ALJR 841
GSA Industries (1990) 24 NSWLR 710
Gale v Superdrug Stores Plc [1996] 1 WLR 1089
Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894
Queensland v J L Holdings Pty Ltd [1997] HCA 1
Cropper v Smith (1884) 26 Ch D 700
Shannon v Lee Chun (1912) 15 CLR 257
Ketteman v Hansel Properties Ltd [1897] AC 189
Bomanite Pty Ltd v Slatex Corp Aust [1991] FCA 536
Allesch v Maunz [2000] HCA 40
Tate & Tate (1997) FLC 92-724
Makita & Sprowles (2001) 52 NSWLR 705
Dietrich v R [1992] HCA 57
Mabo v Queensland [1992] HCA 23
Minister of Ethnic Affairs & Teoh [1995] HCA 20
B & B & Minister of Immigration and Multicultural and Indigenous Affairs [2003] FamCA 621
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCFCA 101
Re R Children’s Wishes [2000] FamCA 43
Bennett & Bennett (1991) FLC 92-191
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] HCA 44
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Whitman & Hacking [2013] FCCA 356
Applicant: MS ACTON
Respondent: MR HAMMER
File Number: PAC 3274 of 2011
Judgment of: Judge Harman
Hearing date: 1 July 2013
Date of Last Submission: 1 July 2013
Delivered at: Parramatta
Delivered on: 1 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Othen
Counsel for the Independent Children’s Lawyer: Mr Schroder

ORDERS

  1. All previous parenting orders are discharged.

  2. The mother shall have sole parental responsibility for the children of the marriage X, born (omitted) 2002 and Y, born (omitted) 2004 (“the children”). The mother shall, however, contact the father at least twenty one days prior to making any decision about any major long term issues, or such less time as is available because of the nature of the decision to be made, indicating to him the matter requiring determination and seeking his views in relation thereto. The ultimate decision in respect of these issues, having followed this process, shall lie with the mother.

  3. The children live with the mother.

  4. Subject to orders 5, 6, 7 below, the children spend time with the father as follows:

    (a)Each alternate weekend from 5pm Friday until 5pm Sunday, subject to these orders;

    (b)In the event that the children are not spending time with the father on Father’s Day, from 5pm the Saturday preceding…

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Details
AGLC
ACTON & HAMMER [2013] FCCA 1174
Case
[2013] FCCA 1174
Decision Date

CaseChat Overview and Summary

In the matter of *Acton and Hammer*, heard before Judge Harman, the dispute concerned parenting orders for two children, X and Y. The mother sought sole parental responsibility and orders for the children to live with her, while the father sought orders for shared parenting arrangements.

The court was required to determine the best interests of the children in relation to their living arrangements, parental responsibility, and time spent with each parent. Specifically, the court had to consider the extent to which each parent should have decision-making authority regarding the children's upbringing and the practical arrangements for the children's time with the father, including during school holidays and on specific family occasions. The court also had to address communication protocols between the parents and the financial implications of the proceedings.

Judge Harman ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for the children, with the requirement to consult the father on major long-term issues at least twenty-one days prior to making a decision, or sooner if circumstances demanded, and to seek his views. The ultimate decision on these matters, after consultation, was to lie with the mother. The children were ordered to live with the mother, and detailed provisions were made for the children to spend time with the father, including specific arrangements for weekends, public holidays, and school holidays, with certain conditions and restrictions. The father was restrained from taking one child for medical treatment without the mother's written consent or a court order. The court also made orders regarding changeover locations, communication between parents and children, notification of address and contact details, and the use of email for communication regarding the children.

Finally, the court ordered the father to pay the mother's costs thrown away in the sum of $1,100 within seven days, and to contribute $3,893 towards the costs of the Independent Children’s Lawyer within six months. All further applications for costs and other outstanding applications were dismissed. The court also made provisions for the return of exhibits and subpoenaed material upon the expiration of the appeal period without an appeal being lodged.

Orders

Orders of the court

1.

All previous parenting orders are discharged.

2.

The mother shall have sole parental responsibility for the children of the marriage X, born (omitted) 2002 and Y, born (omitted) 2004 (“the children”). The mother shall, however, contact the father at least twenty one days prior to making any decision about any major long term issues, or such less time as is available because of the nature of the decision to be made, indicating to him the matter requiring determination and seeking his views in relation thereto. The ultimate decision in respect of these issues, having followed this process, shall lie with the mother.

3.

The children live with the mother.

4.

Subject to orders 5, 6, 7 below, the children spend time with the father as follows:

(a) Each alternate weekend from 5pm Friday until 5pm Sunday, subject to these orders;

(b) In the event that the children are not spending time with the father on Father’s Day, from 5pm the Saturday preceding Father’s Day until 5pm on Father’s Day;

(c) During each shorter (term) school holiday period as gazetted by the NSW Government, for a block period as follows:

(i) In the event the father’s time pursuant to Order 4(a) falls on the first weekend of the school holiday, then such period to extend such that rather than concluding on Sunday such time to conclude at 5pm the following Friday; and

(ii) In the event the father’s time pursuant to Order 4(a) falls on the middle weekend of the school holiday, then the father’s time shall commence on the first Monday of the school holidays at 5pm and shall continue until the following Friday at 5pm (such that, taking into account the time pursuant to this Order 4(c)(ii) and the time pursuant to Order 4(a), the father’s time is from Monday at 5pm until the following Sunday at 5pm).

(d) In the Summer (Christmas) school holiday period in 2013/14 by the NSW Government as agreed between the parties, and failing agreement:

(i) The time at Order 4(a) is suspended, and such time recommences on the first weekend after the commencement of Term 1 as gazetted by the NSW Government each year;

(ii) From 5pm on the last day of Term 4 in December as gazetted by the NSW Government until 5pm on Boxing Day in years ending in an even number;

(iii) From 5pm Boxing Day until 5pm 2 January in those years ending in an odd number; and

(iv) From 5pm on 16 January until 5pm on 23 January each year.

(e) In the Christmas 2014/15 school holiday period and each alternate year thereafter for a two week block period commencing 5pm on the day after the last day of school attendance, Term 4, and concluding 5pm on the day 14 days later, and for the Christmas 2015/16 school holidays for a two week block period commencing 5pm 9 January and concluding 5pm 23 January.

(f) At any other or alternate times by agreement between the parties.

5.

In the event that Mother’s Day occurs on a weekend provided for in Order 4(a) above, then the father’s time with the children is suspended from 5pm on the Saturday preceding Mother’s Day.

6.

In the event that the father is more than 20 minutes late collecting the children from the mother at the commencement of a period provided for in Order 4 above, then the father’s time with the children shall be suspended for that period unless the mother agrees in writing to the contrary.

7.

The father is restrained from taking the child Y, born (omitted) 2004, to a medical practitioner or specialist for the purpose of treatment or assessment other than pursuant to an Order of the Court or written consent from the mother.

8.

Unless otherwise referred to in these Orders, or as otherwise agreed, changeovers for the purpose of these Orders are to take place at the (omitted) McDonalds on the (omitted).

9.

Each party do all acts and things to facilitate the children communicating by telephone with the other parent whilst the children are in their care, such communication to be at reasonable times as the children may respectively express.

10.

Each party shall notify the other of any new residential address details at least two weeks prior to any change in residential address.

11.

Each party shall notify the other of any change in landline telephone or mobile telephone and email contact details not more than twenty four hours after that change.

12.

The father shall do all acts and things to set up an email address and provide the details of that email address to the mother within 7 days of the date of these Orders.

13.

That upon the father establishing the email address referred to in Order 12 above, the parties communicate with one another in relation to the children by way of email correspondence.

14.

Each parent will ensure that the other is kept informed as soon as practicable of:

(a) Any medical problems, illness or injuries suffered by the children whilst they are in his/her care; and

(b) Any medication that has been prescribed for the children or either of them, or any over the counter medication being administered to the children.

15.

In any period during which the children or either of them is living with either party, then that party must telephone or send an SMS text message to the other as soon as practicable (and in any event within one hour) of either child being hospitalised or receiving urgent medical treatment, or in the case of any other emergency.

16.

Mr Hammer shall pay to Ms Acton or as she may direct in writing the sum of $1,100, representing her costs thrown away with respect to the listing and appearance, 24 April 2013, such costs to be paid within seven days.

17.

Mr Hammer shall pay to the Legal Aid Commission of New South Wales by way of contribution towards the costs of provision of the Independent Children’s Lawyer the sum of $3,893, such costs to be paid within six months.

18.

Dismiss the further application for costs and otherwise dismiss all outstanding applications and responses.

19.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

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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